Legals

User Agreement

between

AlphaCrowd Limited (New Zealand company number 5563067) (AlphaCrowd); and

[the user] (User)

Warning Statement

Equity crowd funding is risky. Issuers using this facility include new or rapidly growing ventures. Investment in these types of businesses is very speculative and carries high risks. You may lose your entire investment, and must be in a position to bear this risk without undue hardship. New Zealand law normally requires people who offer financial products to give information to investors before they invest. This requires those offering financial products to have disclosed information that is important for investors to make an informed decision. The usual rules do not apply to offers by issuers using this facility. As a result, you may not be given all the information usually required. You will also have fewer other legal protections for this investment. Ask questions, read all information given carefully, and seek independent financial advice before committing yourself.

Introduction

A. AlphaCrowd provides an equity crowdfunding service whereby companies wishing to raise capital can offer shares to investors, who are registered users of AlphaCrowd’s services, via the AlphaCrowd website www.alphacrowd.co.nz (the Website).

B. The User is considering subscribing for shares offered pursuant to AlphaCrowd Offers by Issuers.

C. By entering into this User Agreement, the User agrees that it has read and understood and is bound by:

  1. the Warning Statement set out before the introduction of this User Agreement;
  2. the AlphaCrowd Disclosure Statement (see a copy here);
  3. the AlphaCrowd Privacy Policy (see a copy here); and
  4. the AlphaCrowd website Terms and Conditions(see a copy here).

1. Definitions

In this User Agreement, unless the context otherwise requires:

AlphaCrowd Offer means an offer of shares by an Issuer conducted through the Website;

AML CFT Act means the Anti-Money Laundering and Countering Financing of Terrorism Act 2009;

Disclosure Statement means AlphaCrowd’s Disclosure Statement a copy of which can be found here;

Dispute means any complaint, dispute, difference or question arising out of or in connection with this agreement or its formation;

Investment Agreement means an agreement between a User and an Issuer in relation to the User’s subscription for shares in the Issuer under an AlphaCrowd Offer;

Issuer means a company proposing to issue shares to Users under an AlphaCrowd Offer;

Overseas User means any User who:

  1. registers as an investor on the Website from outside New Zealand;
  2. is not a New Zealand citizen (for individuals, in their personal capacity or as trustee);or
  3. is not a company incorporated in New Zealand (for companies, in their own capacity or as trustee).

Preliminary Issuer Checks has the meaning given to that term in clause 3.2;

Privacy Policy means AlphaCrowd’s privacy policy a copy of which can be found here;

Subscription Payment means a payment made by the User to an Issuer in consideration for shares in the Issuer subscribed for under an Investment Agreement;

Termination Event has the meaning given to that term in clause 5.7;

User means any person who has entered into a User Agreement and registered with AlphaCrowd and in accordance with clauses 2.1 and 2.2;

User Agreement means this User Agreement; and

Website means AlphaCrowd’s website www.alphacrowd.co.nz.

2. Registration

2.1 A person must provide their name and email address to AlphaCrowd via the Website in order to have full access to AlphaCrowd Offers on the Website. After these details have been provided, the person will receive an email from AlphaCrowd asking them to verify their email address. After they have responded to that email, the person will have full access to AlphaCrowd Offers by logging in on the Website using their email address and a chosen password.

2.2 Subject to completion of the registration steps set out in clause 2.1, in order to be eligible to subscribe for shares under an AlphaCrowd Offer, a person must register as a User with AlphaCrowd by:

  1. providing:
    1. User’s name, which in the case of:
      1. a person, means the full legal name;
      2. a company, includes the New Zealand company number or business number;
      3. a trust, means the full name of the trust and the full name of each trustee of the trust;
    2. the User’s address, which in the case of:
      1. a person, is that person’s residential address; and
      2. a company, is that company’s registered office or address for service;
      3. a trust, is the address of each trustee, being a residential address in the case of a person and a registered office or address for service in the case of a company;
    3. the User’s passport detail / driver licence details (in the case of an individual);
    4. the User’s bank account details;
    5. any other information requested by AlphaCrowd in the Website’s registration form; and
  2. entering into this User Agreement with AlphaCrowd.

2.3 The User agrees that the email address provided in accordance with clause 2.1 will be used by AlphaCrowd as the primary mode of communication with the User.

2.4 AlphaCrowd may provide the personal information provided by the User under this clause 2 to:

  1. an Issuer under an AlphaCrowd Offer;
  2. the Financial Markets Authority (FMA), on request by the FMA.

2.5 The User acknowledges that an AlphaCrowd Offer is not an offer to the public in any other jurisdiction outside New Zealand. Any Overseas User is responsible for ensuring its compliance with all laws that apply to it in accessing the Website, reviewing an AlphaCrowd Offer and subscribing for shares under any AlphaCrowd Offer.

2.6 Where a company applies to register as User, the application must be submitted by a director or authorised person on the company’s behalf. By entering into this User Agreement, the person submitting the application confirms that they are authorised to submit the application and enter into this User Agreement on behalf of the company. The person must provide the information in clause 2.2 in relation to themselves as well as the company, and any other information requested by AlphaCrowd to verify the person’s authority to make the application and enter into this User Agreement on behalf of the company.

2.7 If the application to register as a User is made by the trustees of a trust, each trustee confirms that they are authorised to make the application and enter into this User Agreement in their capacity as a trustee of the trust under the terms of the trust deed or other establishment documents. Each trustee must provide the information in clause 2.2 and any other information requested by AlphaCrowd to verify their authority to make the application and enter into this User Agreement.

2.8 Each User must also provide AlphaCrowd with any other identification and information which is requested by AlphaCrowd in connection with any compliance obligations under the AML CFT Act, including information about the sources of funds being provided by a User in relation to any AlphaCrowd Offer.

2.9 While registered with AlphaCrowd, each User must ensure that any personal information provided to AlphaCrowd under this clause 2 is up-to-date. The User is responsible for notifying AlphaCrowd of any changes to this information.

2.10 Each individual who registers as a User of AlphaCrowd confirms that it is at least 18 years of age.

2.11 Each User may only register once with AlphaCrowd. A User must not create more than one registration by using different email addresses or other information.

2.12 AlphaCrowd may, in its absolute discretion, refuse, cancel or suspend a User’s registration at any time, if in its opinion:

  1. the information provided by a User is inaccurate or incomplete;
  2. the results of any legal compliance checks that it takes in respect of a User, whether in connection with AML CFT Act or otherwise, are inadequate;
  3. the User is in breach of, or is likely to breach, any provision of this User Agreement; or
  4. the User, by association with AlphaCrowd and an Issuer, may cause damage to the reputation of AlphaCrowd, an AlphaCrowd Offer or any Issuer.

2.13 If a User’s registration has been terminated or suspended after it has signed an Investment Agreement, the User will continue to be bound by the Investment Agreement and be required to pay the Subscription Payment in respect of its share subscription under the relevant AlphaCrowd Offer.

3. Preliminary Issuer Investigations

3.1 AlphaCrowd will undertake, either itself or using a third party, Preliminary Issuer Investigations before accepting an application to undertake an AlphaCrowd Offer with an Issuer. These investigations are relatively limited in their scope.

3.2 Preliminary Issuer Investigations include:

  1. insolvency register searches in respect of each Issuer;
  2. Summary Instalment Order register searches in respect of the directors of each Issuer;
  3. confirmatory Companies Office searches in respect of an Issuer and its directors and shareholders;
  4. general searches of publicly available information for evidence of the general character of the Issuer’s directors and senior managers, bankruptcy or involvement with insolvent companies, or any litigation or disputes related to the Issuer or its directors and senior managers;
  5. police criminal records searches, if permitted by authorities; and
  6. a subjective assessment of the Issuer and the proposed AlphaCrowd Offer.

3.3 After undertaking the Preliminary Issuer Investigations in respect of an Issuer, AlphaCrowd may, in its sole discretion:

  1. accept or reject the application for the AlphaCrowd Offer in respect of that Issuer;
  2. give the Issuer and / or its directors an opportunity to respond to any areas of concern raised by AlphaCrowd in undertaking the Preliminary Issuer Investigations, following which AlphaCrowd may, in its sole discretion, accept or reject the application for the AlphaCrowd Offer, as it sees fit.

3.4 AlphaCrowd may, in its sole discretion, at any time after accepting an application for an AlphaCrowd Offer, discontinue the AlphaCrowd Offer and refuse to allow the Issuer use of AlphaCrowd’s services and Website.

3.5 Other than to the extent of the Preliminary Issuer Investigations undertaken by AlphaCrowd, AlphaCrowd do not monitor Issuers, or the directors or senior managers of any Issuer.

3.6 Neither the Preliminary Issuer Investigations nor the fact than an Issuer is conducting an AlphaCrowd Offer using the Website:

  1. represents or implies the commercial success of any Issuer; or
  2. assures the results of a User’s investment in an AlphaCrowd Offer; and
  3. should be relied on in a User’s decision whether to subscribe for shares in an Issuer under an AlphaCrowd Offer.

3.7 AlphaCrowd relies on each Issuer to regularly update any details of, or information relating to its AlphaCrowd Offer on the Website, with any new material information which may arise or change during the AlphaCrowd Offer. AlphaCrowd do not monitor this process or ensure that each Issuer regularly provides such updated information to the AlphaCrowd Offer page on the Website.

4. Subscription Payment and User fees

4.1 AlphaCrowd does not charge Users fees, whether for access to the Website or for investing in an AlphaCrowd Offer.

4.2 AlphaCrowd will retain any interest accrued on any Subscription Payments held in its trust account.

4.3 AlphaCrowd will provide written notice to the User in advance of any proposed imposition of fees or changes to the fees charged to Users in connection with the User Agreement.

4.4 Users are responsible for paying any applicable bank charges, credit card charges or payment processing provider charges in connection with the Subscription Payment to AlphaCrowd under an AlphaCrowd Offer.

4.5 In making the Subscription Payment in respect of an AlphaCrowd Offer, the User must ensure that it:

  1. authorises AlphaCrowd to direct debit; or
  2. pays by way of bank transfer or credit card payment,

such an amount to ensure that the amount actually received by AlphaCrowd (net of any fees or other deductions) is equal to the amount that the User intends to invest in the AlphaCrowd Offer.

4.6 AlphaCrowd will hold any Subscription Payment paid by a User in its trust account on trust for the User, until the Subscription Payment is either:

  1. paid by AlphaCrowd (on behalf of the User) to an Issuer under an AlphaCrowd Offer on completion (less any fees owing by the Issuer to AlphaCrowd in respect of that Subscription Payment); or
  2. paid by AlphaCrowd back to the User (without interest) in the event of a Termination Event.

5. The process of an AlphaCrowd Offer

5.1 Each User who is successfully registered with AlphaCrowd in accordance with clause 2 will be eligible to subscribe for shares under any AlphaCrowd Offer.

5.2 Each AlphaCrowd Offer will have a defined offer period (Offer Period) during which Users can subscribe for shares in the Issuer. The Offer Period will commence on the opening date specified on the Website’s page for that AlphaCrowd Offer and will finish on the earlier of:

  1. the closing date specified on the Website’s page for that AlphaCrowd Offer;
  2. the termination of the AlphaCrowd Offer (including, without limitation, as a result of a material adverse change affecting the AlphaCrowd Offer or as required by AlphaCrowd); and
  3. the Issuer reaching its maximum investment level as set out on the Website’s page for that AlphaCrowd Offer.

5.3 In order to subscribe for shares in an Issuer under an AlphaCrowd Offer, a User must enter into an Investment Agreement with the Issuer during the Offer Period. The Investment Agreement will be accessible on the Website’s page for that AlphaCrowd Offer. The User may enter into the Investment Agreement by signing electronically, which will legally bind the User to its terms. The Investment Agreement will contain the terms and conditions of the User’s subscription for shares in the Issuer, including the Subscription Payment.

5.4 Where a User is subscribing for shares under an AlphaCrowd Offer as a trustee of a trust, all of the trustees of that trust must sign the Investment Agreement by electronic signature.

5.5 Once the User has entered into an Investment Agreement, it will be directed to a payment page on the Website where it will either:

  1. authorise AlphaCrowd to debit the Subscription Payment from its nominated bank account at any time after entering into the Investment Agreement (but in any event by no later than completion of the AlphaCrowd Offer). Each User who has entered into an Investment Agreement must ensure that it has sufficient funds in its nominated bank account for the Subscription Payment to be debited by AlphaCrowd following its entry into the Investment Agreement;
  2. pay the Subscription Payment on the same day or the next business day by direct deposit into AlphaCrowd’s nominated bank account; or
  3. pay the Subscription Payment by credit card, or any other payment service provider.

5.6 AlphaCrowd will hold the Subscription Payment in its trust account on trust for the User until it is paid out as contemplated by clause 4.2.

5.7 A Termination Event means the termination of the AlphaCrowd Offer by the Issuer:

  1. as a result of a material adverse change in the Issuer;
  2. where it is required to do so by the FMA or any other government agency or court order;
  3. where it is required to do so by AlphaCrowd; or
  4. as a result of the Issuer not reaching its proposed investment level by the end of the final day of the Offer Period.

5.8 For the avoidance of doubt, AlphaCrowd will retain the interest accrued on any Subscription Payment which is held in its trust account.

5.9 Subject to no Termination Event occurring, the completion of the AlphaCrowd Offer will occur, for the purposes of clause 4.2, 10 business days following the final day of the Offer Period.

5.10 If a Termination Event occurs, any Investment Agreement will be cancelled and of no effect and AlphaCrowd will return the Subscription Payment to the User’s nominated bank account within 10 business days of AlphaCrowd notifying the User that the AlphaCrowd Offer has been terminated.

5.11 An Issuer may in its absolute discretion cancel an apparently successful AlphaCrowd Offer in the event that Users fail to actually make, or revoke, Subscription Payments and the aggregate Subscription Payments actually received (by the end of the third business day after the final day of the Offer Period) is less than 90% of the minimum targeted investment level for the AlphaCrowd Offer.

5.12 If there is an oversubscription such that the aggregate of Subscription Payments received in respect of an AlphaCrowd Offer exceeds the maximum investment in respect of that offer, the Issuer will have the discretion to select the subscriptions that it will accept. The Issuer will be entitled to cancel any Investment Agreements in respect of subscriptions not selected by notice to the relevant Users. AlphaCrowd will return Subscription Payments received from such Users in respect of that AlphaCrowd Offer to that User’s nominated bank account within 10 business days of the notice of cancellation be emailed (without interest).

6. Limitation of liability

6.1 AlphaCrowd does not verify the content of the offer materials, and makes no representation or warranty as to the completeness or accuracy of any information contained in the offer materials, or any information provided to the User in connection with any AlphaCrowd Offer.

6.2 AlphaCrowd does not make any investment recommendation or provide any investment advice to the User. The fact that AlphaCrowd has conducted a subjective assessment of any AlphaCrowd Offer shall not be relied upon by the User in making a decision to invest (or not invest) in any AlphaCrowd Offer.

6.3 Each User is entirely responsible for a decision to invest (or not invest) in any Issuer under an AlphaCrowd Offer. Each User acknowledges that it has independently made all such enquiries and taken all such professional advice as may be necessary to enable it to make an informed and independent decision to invest (or not invest) in any AlphaCrowd Offer.

6.4 AlphaCrowd shall not be liable to a User under or in connection with its decision to invest (or not invest) in any AlphaCrowd Offer (whether in contract, tort or any other cause of action) except to the extent that such liability is caused by AlphaCrowd’s fraud or wilful default.

6.5 AlphaCrowd does not provide, or purport to provide, any legal, taxation, financial or investment advice whatsoever in connection with any AlphaCrowd Offer or otherwise.

6.6 AlphaCrowd and its employees, officers, agents and contractors shall not be in breach of this User Agreement or liable to any User for any delay or failure in performing its obligations or providing its services under this User Agreement, to the extent that such delay or failure results from event or circumstances beyond its reasonable control.

6.7 The parties agree that to the extent that a person enters into, and performs its obligations under, this User Agreement as a trustee (Relevant Trustee) of a trust (Relevant Trust), the Relevant Trustee’s liability under this User Agreement shall be limited to and can be enforced against the Relevant Trustee only to the extent to which it can be satisfied out of the assets from time to time under its control as trustee of the Relevant Trust out of which the Relevant Trustee is actually indemnified for the liability. The Relevant Trustee must not be a beneficiary of the Relevant Trust, nor have any right to, or interest in, any of the assets of the Relevant Trust except in his or her capacity as trustee of that trust.

7. Indemnity

7.1 The User indemnifies AlphaCrowd and its directors, employees, officers and agents (Indemnified Persons), in respect of:

  1. all losses, damages, expenses and costs (including out of pocket expenses and charges for its time) suffered or incurred them; and
  2. all claims or demands made against them,

arising directly or indirectly out of, or in connection with, any breach or non-fulfilment of any of the obligations of the User under this User Agreement, or otherwise in relation to the User’s participation in an AlphaCrowd Offer.

7.2 The indemnity set out in this clause 7 has also been given for the benefit of the Indemnified Persons, and is intended to be enforceable by the Indemnified Persons in accordance with the provisions of the Contracts (Privity) Act 1982.

8. Investments and Offers by AlphaCrowd and its associated persons

8.1 AlphaCrowd and its directors, employees and other persons that it has a business relationship with (Associated Persons) may subscribe for shares in an AlphaCrowd Offer, or may raise funds through an AlphaCrowd Offer. The User acknowledges that it does not rely on this fact in deciding to invest (or not invest) in an AlphaCrowd Offer.

8.2 AlphaCrowd makes no representation in relation to any AlphaCrowd Offer by reason of its Associated Persons choosing to subscribe for shares in any AlphaCrowd Offer, or to raise funds under an AlphaCrowd Offer.

9. Offer

Where an Associated Person of AlphaCrowd raises funds through an AlphaCrowd Offer, the Associated Person must prominently disclose the nature and extent of its relationship with AlphaCrowd with any materials relating to the AlphaCrowd Offer that it provides on the Website.

10. Termination

10.10 Subject to clause 2.13 of this User Agreement, either party may terminate this User Agreement by giving 10 business days’ notice to the other party.

11. Dispute Resolution and Class Action Waiver

11.1 If a User has a Dispute about AlphaCrowd or its services, it should first be directed to AlphaCrowd at the address given in clause 12.5 for resolution.

11.2 Dispute made to AlphaCrowd which it cannot resolve will be referred to the Financial Services Complaints Limited, Level 4, 101 Lambton Quay, Wellington 6145 whose website is at http://www.fscl.org.nz.

11.3 Dispute that cannot be resolved by the Financial Services Complaints Limited, shall be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc.

11.4 The arbitration shall be by one arbitrator to be agreed upon by the parties and if they should fail to agree on an arbitrator within twenty-one (21) days from the date upon which the Dispute is referred to arbitration then the arbitrator is to be appointed by the President of the Arbitrators' and Mediators' Institute of New Zealand Inc.

11.5 Each party must continue to perform its obligations under this User Agreement as far as possible as if no Dispute had arisen pending the final resolution of any Dispute.

11.6 Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Neither the User nor AlphaCrowd will seek to have any complaint or Dispute heard as a class action, private criminal proceeding or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

12. General

12.1 To the extent that this User Agreement conflicts with the provisions of the Consumer Guarantees Act 1993, this User Agreement shall be modified to give full effect to the provisions of that Act (except to the extent permitted under that Act).

12.2 AlphaCrowd may amend, supplement, vary or replace this User Agreement from time to time and the User shall be deemed to have agreed to such modified terms. Notice any such amendment will be provided to Users via email. If a User does not accept any such amendment, it must cease using the Website and AlphaCrowd’s services.

12.3 AlphaCrowd may assign, subcontract or transfer any right or obligation under the User Agreement to any person. The User may not assign, subcontract or transfer any of its rights or obligations under this User Agreement to any other person.

12.4 This User Agreement is effective once the User has agreed to it via electronic signature in the form provided below. The User agrees, for the purposes of the Electronic Transactions Act 2002, to be bound by any agreement reached through electronic means.

12.5 Any notice which is required to be given under this User Agreement shall be provided to:

  1. the User as its email address provided in registration; and
  2. AlphaCrowd at its email address: info@alphacrowd.co.nz or at its address for service: c/- Grant Thornton, L4, 152 Fanshawe Street, Auckland, 1010, New Zealand.

12.6 This User Agreement is governed by and shall be construed in accordance with the laws of New Zealand.

12.7 The parties submit to the exclusive jurisdiction of the courts of New Zealand.

12.8 The parties acknowledge that Clause 12.7 is for the benefit of AlphaCrowd only. As a result despite Clause 11.3, AlphaCrowd shall not be prevented from bringing proceedings related to a Dispute in any other courts in any jurisdiction. To the extent allowed by law AlphaCrowd may take concurrent proceedings in any number of jurisdictions.

12.9 Any illegality, unenforceability or invalidity of a provision of this User Agreement does not affect the legality, enforceability or validity of the remaining provisions of the User Agreement.