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This disclosure statement is made as at 23 October 2015 by AlphaCrowd Limited (company number 5563067) of L4, 152 Fanshawe Street, Auckland, 1010, New Zealand (AlphaCrowd, our, us, we) licensed and regulated by the Financial Markets Authority (FMA) to any person (Investor) who intends to subscribe for shares in a company (Issuer) in response to an offer (Offer) made by the Issuer via the website located at alphacrowd.co.nz (the Website).
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.
AlphaCrowd provides equity crowd funding services, under which Issuers seek to raise capital from Investors through the issue of and investment by the Investor in shares in the Issuer (the Investment).
The investment process is described in more detail at What is the investment process? in the FAQ section. This also includes information about how Issuers and Investors apply for, and obtain, access to our services and the eligibility criteria that apply.
The terms on which AlphaCrowd provides its equity crowd funding services are set out in the following documents, which are available on the Website:
AlphaCrowd is licensed by the FMA as a "licensed intermediary" pursuant to the Financial Markets Conduct Act 2013, enabling it to provide an equity crowd funding service in New Zealand. In order to be granted such licence by the FMA, AlphaCrowd is subject to a number of operational, financial, governance and capability minimum standards, on an ongoing basis. AlphaCrowd's directors and senior managers have been subject to suitable person assessments, as will any new directors and senior managers of AlphaCrowd. The key details of the license requirements for AlphaCrowd can be found at www.fma.govt.nz/media/1960490/standard-conditions-for-crowd-funding-service-licences.pdf
Users can access our platform through the Website (Users). A User must register and be accepted by us to use the services and ultimately to invest in an Issuer, thereby becoming an Investor. The process for registration can be found here. We retain the right to refuse any User from our services as described in more detail in the User Agreement (described below).
As part of the registration process, the User will be required to provide identification to meet our Know-Your-Customer (KYC) requirements. When investing, the User must provide information about the sources of funds being provided, to comply with requirements under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML Act).
An Investor who accesses an Offer from outside New Zealand or who is not a New Zealand citizen (Foreign Investor) is solely responsible for ensuring their compliance with all laws of any country outside New Zealand relevant to them accessing such Offer and subsequently subscribing for any shares pursuant to that Offer. Any Foreign Investor should consult their professional advisers as to whether any governmental or other consents are required, or other formalities need to be observed, to enable them to access an Offer or to subscribe for shares pursuant to an Offer. You acknowledge that the Offers are not offers to the public in the United States of America, Canada or Japan or any other jurisdiction where such an offer may be unlawful or require the Issuer of AlphaCrowd to be registered under the securities laws or otherwise of such jurisdiction.
The User will also be required to enter into an agreement (User Agreement) with AlphaCrowd before it can utilise our services. A copy of the User Agreement can be found here.
AlphaCrowd does not charge Investors any fees for the services we provide in accordance with this Agreement.
AlphaCrowd retains any interest that is earned on Investor funds for the period that they are held in the Computershare Managed trust account set up and managed by Computershare Investor Services Limited. This interest is retained by AlphaCrowd as an administration fee. Details of how an Investor's money is held is described below.
AlphaCrowd currently charges Issuers a commission of up to 6% on any funds raised through the Website for the fund raising service. AlphaCrowd's fees to an Issuer may vary from time to time by written agreement between AlphaCrowd and the respective Issuer.
If an Issuer requests us to provide services beyond the basic fund raising services, for example to assist an Issuer prepare its Offer or to engage external consultants, we will charge the Issuer reasonable time or activity based charges for such work, and for the recovery of external costs and disbursements plus an administrative mark-up. We will not incur any such costs or charges without the prior agreement of the Issuer as to the scope of those charges and the basis of their calculation.
AlphaCrowd retains the right to alter any of the charges applicable to our services, in respect of both Investors and Issuers.
Once an Investor has made an investment application in respect of an Offer, the Investor is asked to arrange for the remittance of the investment money to the Computershare Management Trust Account set up and managed by Computershare Investor Services Limited, the share registrar to the issuer. In order to protect an Investor's interest in its investment monies, the Computershare Managed Trust Account is separate from AlphaCrowd's operating accounts. The investment monies are held in the Computershare managed trust account on trust for the Investors, the Issuer and for AlphaCrowd until AlphaCrowd is required to pay the money to either the Issuer or the Investor at closing, in the circumstances set out below:
Any interest earned on monies held in the Computershare managed trust account is retained by AlphaCrowd as an administrative fee. In all circumstances each Investor is responsible for the payment of its own bank fees or payment processing charges in relation to AlphaCrowd receiving or returning the investment money.
We undertake certain investigations on each Issuer (the Preliminary Issuer Investigations). The Preliminary Issuer Investigations consist of Compulsory Checks and a Subjective Assessment.
The Compulsory Checks consist of a number of checks and searches relating to each Issuer, its directors and senior managers and the Issuer itself. When undertaking the Compulsory Checks, we exercise the care, diligence, and skill that a prudent equity crowdfunding provider undertaking those Compulsory Checks would exercise in the same circumstances. The Compulsory Checks include:
Additionally, we perform a Subjective Assessment of the Issuer and the proposed Offer to make sure that the opportunity is one we wish to present to our Investors. We use our own criteria and judgments in undertaking the Subjective Assessment in order to determine whether to allow the Issuer to access our service. We may, but are not obliged to, seek advice from one or more of our panel of Industry Advisors in making a Subjective Assessment. Our Subjective Assessment is not an expert opinion and is not to be relied upon by Users or Investors in making a decision to invest or not to invest in an Issuer. The simple fact of an Offer being listed on our website is not to be taken as an endorsement of the Offer or its Issuer by AlphaCrowd.
We will maintain appropriate records of each Offer for the statutory record retention period.
We do not verify the content of the Issuer's offer materials, and we make no representations in relation to the completeness or accuracy of any of the information in the offer materials including the Due Diligence File.
Ultimately, we retain the sole and absolute discretion on whether to allow an Issuer to use our services and are not required to provide any reasons to an Issuer for our refusal to provide our services to it. Specifically, we will not allow any Issuer to raise funds through our service if we have material unresolved concerns arising from the Compulsory Checks or Subjective Assessment.
Each Investor shall be entirely responsible for any decision to invest, or not to invest, in any Issuer. AlphaCrowd shall have no liability to any Investor under or in connection with their decision (whether in contract, tort including, without limitation, negligence, or under any other theory of law or cause of action howsoever arising) unless such liability arises out of the fraudulent actions of AlphaCrowd or a breach by AlphaCrowd of its obligations expressly provided in the User Agreement.
AlphaCrowd relies on each Issuer to inform it if any material information relating to the Issuer has changed from what it disclosed to us through the pre-Offer process, or on the Website. Issuers will be required to update their Offer on the Website with any such information during the Offer period, however we have no meaningful way of controlling this or ensuring that it will occur.
During the course of an Offer and any time prior to closing, should an Issuer's circumstances change or should we deem it necessary in the interests of ethics, integrity, or Investor protection, to suspend or cancel the Offer, we can do so at our sole and absolute discretion with no liability accepted to the Issuer or any person.
Persons and entities associated with AlphaCrowd (such as its directors, senior managers, employees, people that AlphaCrowd has a business relationship with or its parent company) (Related Parties) may subscribe for shares in any Offer. If an Investor becomes aware that AlphaCrowd or any Related Party of AlphaCrowd has invested in a particular Issuer, it may not rely on this fact when making a decision whether or not to invest in that particular Issuer.
AlphaCrowd or any of its Related Parties may raise funds through itself (i.e. through equity crowd funding on the Website) and is required to apply the same Compulsory Checks, Subjective Assessment and listing criteria as are applied to all Issuers applying to use the service.
For the avoidance of doubt, AlphaCrowd and its Related Parties are not restricted or prohibited from issuing under or using the services offered by AlphaCrowd.
Communications with, to or from AlphaCrowd shall be in the English language.
If an Investor has any complaints or queries about the services provided by AlphaCrowd, he/she should contact AlphaCrowd at the contact details set out below.
If an Investor it not satisfied with AlphaCrowd's response to the complaint, he/she may refer the complaint to the Financial Services Complaints Limited, an approved dispute resolution scheme under the Financial Service Providers (Registration and Dispute Resolution) Act 2008. They can be contacted at: PO Box 5967, Wellington 6145 or firstname.lastname@example.org or 0800 347 257.
AlphaCrowd Limited (New Zealand company number 5563067) (AlphaCrowd); and
[the user] (User)
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:
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:
Preliminary Issuer Checks has the meaning given to that term in clause 3.2;
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.
2.1 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:
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:
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:
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.
3.1 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:
3.3 After undertaking the Preliminary Issuer Investigations in respect of an Issuer, AlphaCrowd may, in its sole discretion:
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:
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.
4.1 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:
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:
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:
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:
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:
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).
6.1 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.
7.1 The User indemnifies AlphaCrowd and its directors, employees, officers and agents (Indemnified Persons), in respect of:
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.
8.1 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.
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.
10.10 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.
11.1 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.
12.1 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:
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.