Terms and Conditions
DefinitionsThe definitions below apply to all of the Terms and Conditions listed.
Champion: A person or a company that is promoting an Investment on the Website.
Claim: means claims, demands, actions, costs and expenses (including but not limited to legal costs and disbursements on a solicitor and own client basis), losses and damages.
Investment Information: means all information provided by the Champion as part of the Fundraising process (successfully or otherwise) via the Website (including without limitation any business plan, investment memorandum, financial forecasts, accounts and other information about the Investment Vehicle.
Cancelation Period Completion: Once funds have been transferred to the escrow account the Investor has one month or up to Completion whichever is the earlier (the “Cancelation Period”) to cancel his commitment.
Contract: means a contract between the Investor and the Service Provider based on and incorporating all of these Conditions.
Fundraising: means the Champion’s current proposed fundraising as set out on the Website.
Group SPV Company: means the SPV Company and/or any other SPV Company from time to time in the same group (as defined by s.474(1) Companies Act 2006) as the SPV Company. SPV stands for Special Purpose Vehicle.
Investor Information: means all information provided by the Investor to any Investment Vehicle and/or the Service Provider and their officers and members (including without limitation any personal data, investment criteria, confirmation of investment status (e.g. as a “Self-Certified Sophisticated Investor” or otherwise) and other information about the Investor) as part of the application by the Investor via the Website to become an ‘Investor’.
Investment: means a property or equity investment proposed by the Champion on the Website and made by the Investor as part of the Fundraising via the Website (albeit using third party payment providers).
Investment Vehicle means any legal entity or structure that is set up to hold the Investment on behalf of the Investor, including without limitation, an SPV Company or a property trust and where the context provides shall include all administrators, advisers to or managers of the Investment Vehicle.
Legal Documentation means all the legal documents provided by the Service Provider needed to complete the Investment. Please note that the Investments may be structured in a number of different ways that the Champion will determine and which must reflect an appropriate structure for the jurisdiction where the Investment will take place.
Loss: means loss and/or damage (including actual costs and expenses relating to or arising out of such loss or damage) whether arising from contract, tort (including negligence) or otherwise.
Elite Crowdfunding Limited: means Elite Crowdfunding Limited, a private company limited by shares incorporated in United Kingdom with company registration number 10347767, which is authorised and regulated by the Financial Conduct Authority (Reference number: 822039). Registered office at Chester House, 1st Floor, Office 101, 81-83, Fulham High Street, Fulham Green, London, SW6 3JA
Mangopay: means MANGOPAY, a public limited liability company incorporated in Luxembourg, with a capital of 2, 000,000 euros and registered offices at 59 Boulevard Royal, L-2449 Luxembourg, listed under Number B173459 on the Luxembourg Trade and Company Register, approved as an electronic money institution by the Financial Sector Regulator (CSSF).
Service Provider: means Elite Crowdfunding Limited which operates the crowd funding platform for the Fundraising.
Service Provider Fee means the fee paid by the Investor as set out on the Website.
Shares means shares in the capital of any SPV Company.
SPV Company; means each company set up to own an asset interest on behalf of the Investors.
1. Applicable termsThese Conditions prevail over any inconsistent terms or conditions contained, or referred to, in any correspondence between the Investor and any Investment Vehicle, the Champion and/or the Service Provider, on the Website, or implied by law, trade custom, practice or course of dealing. No terms or conditions endorsed upon, delivered with or contained in an Investor’s correspondence with any Investment Vehicle, the Champion and/or the Service Provider shall form part of the Contract and the Investor waives any right which it otherwise might have to rely on such terms and conditions. The headings in bold in these Conditions shall not form part of the Contract, are for convenience only and shall not affect their interpretation.
2. Legally binding terms and restrictionsThese Conditions create legally binding obligations which, once accepted by the Investor, form the Contract, which can be relied upon and enforced by any Investment Vehicle, the Champion and/or the Service Provider and/or their respective advisers and/or any of their approved auditors against the Investor. The Investor shall be deemed to have accepted these Conditions by using the Website and transmitting funds for Investment. The Investor agrees that the potential opportunity to invest funds via the Website is adequate consideration for this Contract. The Fundraising is not open to the general public and is only open to persons resident in the United Kingdom (“UK”), European Union (“EU”), European Economic Area (“EEA”) or Switzerland (“CH”) or any other country as set out on the Website from time to time and who are either a “Certified High Net Worth Individual”, “Self-Certified Sophisticated Investor” or “Restricted Investor” (as these terms are defined in The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended). You must not participate in any Fundraising or make any other investments via the Website if you do not meet any of these criteria and you must not complete the online registration process to become an ‘Investor’.
3. Legal DocumentationThe Investor shall be deemed to have reviewed and approved the Legal Documentation related to the Investment. These Conditions shall also apply to such application by the Investor. The Service Provider reserves the right to refuse any application by any person as part of the Fundraising without having to give a reason for so doing and with no right of appeal being available.
4. Use of Investor Information (including personal data)By accepting these Conditions the Investor acknowledges that the Service Provider and their contractors and professional advisers (including without limitation Mangopay, and solicitors/attorneys) shall be entitled to use the Investor Information to assess and/or process the application by the Investor to participate in the Investment as part of the Fundraising, to comply with the law, to perform any necessary identification checks to help verify who the Investor is. Furthermore the Service Provider may disclose Investor Information to third parties: (i) in the event that the Investment is sold, in which case personal data may be disclosed to the prospective buyer (although this will be done under obligations of confidentiality), (ii) if any Investment Vehicle and/or the Service Provider is under a duty to disclose or share Investor Information in order to comply with any legal obligation (including, without limitation, in the EEA to the Police, the Financial Conduct Authority, the Information Commissioner , any securities regulatory authority or law enforcement authority, etc.), (iii) in order to enforce or apply any of the these Conditions or any other contracts entered into between the Investor and any Investment Vehicle, the Champion and/or the Service Provider , and/or (iv) in order to protect the rights of any Investment Vehicle and/or the Service Provider . This includes without limitation exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction. In order to review any application by the Investor, the Service Provider may request that the Investor provides personal information about himself/itself and its directors and shareholders (as applicable) such as name, address, email address, date of birth and copies of information such as your passport page and other proof of identification . The Investor Information may be transferred to, and stored at, a destination outside the EEA and may also be processed by staff operating outside the EEA who work for the Service Provider or for one of its suppliers. The Service Provider will use reasonable endeavours to ensure that all Investor Information is treated securely. When the Investor provides Investor Information to any Investment Vehicle and/or the Service Provider, the Investor consents to the use of that Investor Information in accordance with this paragraph.
5. Risks and warningsBy accepting these Conditions the Investor acknowledges and agrees that (i) a decision to make an Investment is a personal decision by the Investor and that no responsibility for the consequences of that decision is accepted by the Champion and/or the Service Provider or by any of their directors, shareholders, advisers, agents, employees or other members, (ii) that the Investor has been strongly advised by the Champion and/or the Service Provider to take advice from a person authorised under the Financial Services and Markets Act 2000 (who specialises in advising on investments of this nature) before making any Investment(s) or (if the Investor is resident anywhere else outside the United Kingdom) has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an Investment, (iii) any Investment is very speculative and high risk, (iv) no established market exists for the trading of Shares and such Shares are not easily realisable, (v) there could be difficulty in selling on Shares or any property asset acquired as part of the Investment at a reasonable price and, in some circumstances, it may be difficult to sell them at any price, (vi) Share prices and property prices can fluctuate and go down as well as up, (vii) the Investor shall consider very carefully whether any Investment is suitable in the light of personal circumstances and commitments and the financial resources available to the Investor and if in doubt shall seek professional advice and/or may not proceed, (viii) any Investment Vehicle, and/or the Service Provider does not promise any return on any Investment nor that the value of any Investment will be maintained, (ix) engaging in any investment activity may expose the Investor to a significant risk of losing all of that Investor’s investment. Any Investment Vehicle and/or the Service Provider recommend that the Investor takes his/its own tax advice on any Investment(s). Any information, commentary, figures, percentages, indications, estimations or any other material contained on the Website are not intended to be financial advice to an Investor and all Investors are solely responsible for seeking their own independent financial advice and satisfying themselves with their own due diligence before making an Investment.
6. Investor informationThe Investor represents and warrants that (i) all Investor Information provided by the Investor (during the registration process) is correct and accurate, (ii) such Investor Information may be used by any Investment Vehicle and/or the Service Provider and their respective advisers, directors, agents or contractors to comply with all applicable legal requirements (e.g. anti-money laundering checks and compliance), (iii) such Investor Information may be passed by any Investment Vehicle and/or the Service Provider to Mangopay and other contractors of any Investment Vehicle and/or the Service Provider from time to time involved in the Fundraising process (including, without limitation, to carry out its own checks and ensure legal compliance), and (iv) the Investor shall promptly update, via the Website, any changes to the Investor Information to ensure that Investor Information is correct and accurate at all times.
7. Capacity of the Investor to accept these Conditions.The Investor represents and warrants that: (i) he/she is a living person, then he/she is at least 18 years old and resident in the United Kingdom (which comprises Scotland, England, Wales and Northern Ireland), the Isle of Man, the EU, the EEA or CH, or any other country as set out on the Website from time to time (ii) he/she is a living person, then he/she is either a “Certified High Net Worth Individual”, “Self-Certified Sophisticated Investor” or “Restricted Investor” (as these terms are defined in The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended), (iii) if it is an SPV Company, trust, unincorporated association or partnership, then it is a “High Net Worth SPV Company”, “High Net Worth Trust”, “High Net Worth Unincorporated Association” or “High Net Worth Partnership” (as applicable and as these terms are defined in The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended)), (iv) he/she has full capacity and authority to accept these Conditions and enter into the Contract (without the need for any Investment Vehicle and/or the Service Provider to make any further enquiries of the Investor), (v) he/she has full power and authority to carry out the actions contemplated under the Contract, (vi) he/she will perform his obligations under the Contract exercising all reasonable care and skill, and (vii) he/she shall use the Website only for legitimate and lawful activities and not as part of (directly or indirectly) any unlawful activities.
8. Refusal of applications and de-registrationThe Service Provider reserves the right (in its absolute discretion) (i) not to accept any application by any person to register on the Website as an ‘Investor’ where it is not satisfied with any of the Investor Information provided (on the basis that the Service Provider is not obliged or under any duty to make further enquiries in relation to any of the Investor Information provided ( including, without limitation, to check its veracity or that it complies with the law), and (ii) to de-register (or procure the de-registration) of the Investor from the Website at any time and for any reason. In each instance there shall be no compensation payable to the Investor and there shall be no right of appeal. Notwithstanding such termination these Conditions shall remain enforceable by any Investment Vehicle and/or the Service Provider and their respective advisers.
9. Investment Information is confidential.The Investor agrees to keep any Investment Information confidential and not to pass it on or otherwise make it available to any third party who is not a professional adviser of the Investor who is also bound by obligations of confidentiality. This restriction shall not however restrict the Investor from passing such information to other Investors, to any regulatory body or government department (including, without limitation, HM Revenue & Customs or the Financial Conduct Authority), or to any applicable court or legal officers in connection with any legal proceedings where the Investor is obliged to do so.
10. Investment TermsThe Investor acknowledges that (i) it is advisable for the Investor to take separate professional advice (including, without limitation, tax, accounting, legal and/or investment specialist) before making an Investment if the Investor is not sure of any of the investment terms, Legal Documentation, Investment Information or other documentation and to request further information from the Service Provider, and (ii) the Service Provider reserves the right to abort the Fundraising at any time, to close the Fundraising only once a minimum stated target has been obtained, have any number of closings (beyond the minimum stated target as part of the Fundraising), take investment from Investors for only part of the Fundraising and/or raise some of the Fundraising from third parties based on different investment terms and conditions.
11. Conditions for completionThe completion of the Fundraising shall be subject to (i) Legal Documentation completion and (ii) incorporation/set up of related legal entities, if any (iii) receipt of the funds including the Service Provider Fee (together with the “Closing Conditions”). If there are any delays between receipt of funds and Completion the Service Provider will not be liable to pay any interest on those funds to an Investor and the Investor acknowledges and agrees that no interest will accrue on Investor Funds which are held in the merchant account.
12. Investment feesThe Service Provider Fee listed on the Website (plus VAT and outlays as applicable) will be deducted from all Investor funds that must be received prior to Completion (with the assistance of any third party payment provider (e.g. Mangopay) to cover the costs of the fundraising process and the fees of various contractors such as the lawyers and other professional advisers of any Investment Vehicle and/or the Service Provider . These fees remain payable even if the Service Provider and/or the Champion after raising funds via the Website has to return all or any of these funds as a result of a legal claim (including, without limitation, for breach of warranty or representation) by any Investor(s).
13. Third party payment providersAny Investment Vehicle and/or the Service Provider will be using Mangopay who act as an independent and secure payment provider to accept payments from Investors. The essence of how Mangopay operates in conjunction with any Investment Vehicle and/or the Service Provider is that the Champion opens a merchant account with Mangopay and nominates and authorises the Service Provider to manage this merchant account on behalf of the Champion and to deduct all fees (in accordance with the payment terms and rules which are set out from time to time on the Website) due to the Service Provider and Mangopay involved in the Fundraising process at Completion. By accepting these Conditions the Investors agree to these terms and authorises the Service Provider to manage any Champion’s Mangopay merchant account accordingly and to have Mangopay pay the funds of the Investor to any Investment Vehicle after first deducting all applicable fees of the Service Provider and Mangopay. The Mangopay terms can be found at https://www.mangopay.com/terms/MANGOPAY_Terms-EN.pdf Prior to any participation in an Investment the Investor will have to transfer the funds that he/it wishes to invest by credit card or electronic funds transfer into his/its e-wallet with Mangopay. When the Investor commits to participating in an Investment via the process on the Website the amount of the commitment shall be debited from the relevant Investors e-wallet and credited to an escrow account held by Mangopay for each respective Investment. Once funds have been transferred to the escrow account the Investor has got one month or up to Completion whichever is the earlier (the “Cancelation Period”) to cancel his commitment. To allow Completion to take place Mangopay shall release the funds from the escrow account on request from the Service Provider. If an Investment does not reach Completion or the Investor cancel his commitment before the end of the Cancellation Period then the funds pledged shall be returned to each Investors respective e-wallet.
14. No guaranteesNo guarantee is given by any Champion and/or the Service Provider or their respective officers or members that the Champion will be successful in raising funds as part of the Fundraising via the Website. The information made available by the Champion on the Website is provided on an ‘as is’ only basis with no guarantees being given that such information is accurate, complete or appropriate. If you do see any mistakes then please let the Champion and/or the Service Provider know so that any necessary corrections can be made as quickly as possible. No guarantee is being given that the Website will always be available 24/7. To the fullest extent permitted by law, no Investment Vehicle and/or the Service Provider or any of their respective officers or members will be liable for any delay by any Investment Vehicle and/or the Service Provider performing or for failure by any Investment Vehicle and/or the Service Provider to perform its obligations hereunder if the delay or failure results from any cause or circumstance whatsoever beyond its reasonable control, including any breach or non-performance of these Conditions by an Investor. Please note that in relation to the financial forecast information that is posted on the Website in relation to the Investment and the Fundraising, this information is not a guarantee or other promise that the Investment will be able to achieve what the Champion has stated it is hoping to do.
15. CommunicationThe Investor will ensure that the Service Provider has at all times an up to date email contract address for communications. Communication will be by email or the Investor user dashboard. The Champion can email the Service Provider at email@example.com
16. Accessing the websiteAs an Investor you will be provided with login details to allow you to access certain parts of the Website. You may also be asked to create a password. All Investors are responsible for the security of their login details and must ensure that any persons who access the Website through its login or internal connection are aware of these Conditions and agree to be bound by them. The Service Provider shall not be liable for any Loss caused by unauthorised access to the Website using an Investor’s login save in the case of any gross negligence by the Service Provider.
17. Payment termsAll returns on Investments will be made to Investors via Mangopay to the account details which have been provided to the Service Provider by the Investor. It is the responsibility of the Investor to ensure that the account details provided are accurate and are kept up to date. All calculations relating to returns on Investments shall (save in the case of manifest error) be binding and conclusive on the Investor. The Service Provider will provide information on how the income due to an Investor has been calculated. The Service Provider will supply any additional information requested if it is able but the Investor will be liable for any additional costs incurred by the Service Provider in this regard. The Service Provider will rely on a third party to manage and collect income from the Investments.
18. Realisation of an investmentDisposal of an entire Investment can only be requested if at least two thirds of the Investors (in value) participating in that particular Investment have made such a request. The Service Provider does not guarantee that any realisation of an Investment or an interest in an Investment will result in a greater return to an Investor than the funds which an Investor originally invested. The Service Provider does not guarantee the period of time that it might take for any such disposal to complete and funds to be received by the exiting Investor(s).
19. VariationThese Conditions may be amended from time to time by the Service Provider subject to the Service Provider informing Investors by email about such amendments with a two-month notice.
20. No waiverNo delay or failure by any Investment Vehicle and/or the Service Provider in exercising or enforcing any of its rights or remedies under the Contract will prejudice or restrict its rights, nor will any waiver of rights by any Investment Vehicle and/or the Service Provider operate as a waiver of subsequent rights.
21. SeverabilityIf any of the Conditions or other provisions of the Contract are found by any court of competent jurisdiction to be void, illegal or unenforceable, such provision shall be deemed to be deleted from the Contract but the remaining provisions of the Contract shall continue in full force and effect insofar as they are not affected by any such deletion.
22. AssignationThe Contract is personal to the Investor. The Investor shall not assign, novate or otherwise dispose of the Contract or any part thereof, or purport to do so, without the prior consent in writing of any Investment Vehicle and/or the Service Provider. The Service Provider shall be entitled to assign, novate or otherwise dispose of its rights under the Contract or any part thereof to any third party by giving the Champion prior written notice of such assignment, novation or other disposal.
23. Indemnity for breachThe Investor shall indemnify each Investment Vehicle and/or the Service Provider, their officers and respective members and advisers and keep each of them indemnified against all Claims incurred by any of them, finally awarded against any of them or agreed by any of them as payable in any compromise or settlement agreement arising out of or caused by any of them suffering Loss, in each case as a result of the breach by the Investor of these Conditions.
24. Governing Law and JurisdictionThe Contract shall be considered as a contract made in England and according to the laws of England and Wales and shall be subject to the non-exclusive jurisdiction of the English Courts, to which jurisdiction the Investor, any Investment Vehicle and the Service Provider hereby irrevocably submit.
Investor Terms & ConditionsThese terms and conditions (“Conditions”) apply to each person who registers as an “Investor” on the crowdfunding website at https://www.mercycrowd.com/ (the “Website”) as part of considering and/or participating in an Investment as part of the Fundraising (each such person an “Investor”):
Version 19th August 2019