(a) a reference to a statute or other legislation includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them, so far as such consolidation, amendment, re-enactment, or replacement applies or is capable of applying to any transactions entered hereunder;
(c) references to any agreement or document in this Fund Raiser’s Agreement shall include references to such agreement or document as from time to time amended, modified, supplemented, or novated, and to any other agreement or document which so amends, modifies, supplements or novates such agreement or document;
(d) references to the Parties include their respective successors in title, permitted assignees, heirs, executors, administrators and legal personal representatives;
(e) references to the singular number shall include references to the plural number and vice versa, and “person” includes an individual, corporation, company, partnership, firm, trustee, trust, executor, administrator, or other legal personal representative, unincorporated association, joint venture, syndicate, or other business enterprise, any governmental, administrative or regulatory authority, or agency (notwithstanding that “person” may be sometimes used herein in conjunction with some of such words), and their respective successors, legal personal representatives and assigns, as the case may be, and pronouns shall have a similarly extended meaning;
(f) the use of any gender-specific or gender-neutral words shall include all gender-specific or gender-neutral variations, including reference to gender-neutral entities other than natural persons;
(i) references to “Clauses”, and “Schedules” are to the clauses of, and the schedules to, this Fund Raiser’s Agreement, and all references to this Fund Raiser’s Agreement shall also include the Schedules, which form part of this Fund Raiser’s Agreement and have the same force and effect as if expressly set out in the body of this Fund Raiser’s Agreement;
(j) the headings in this Fund Raiser’s Agreement are for convenience only and shall not affect the interpretation and construction hereof;
(k) the words “include”, “includes” and “including” or words of similar effect are deemed to be followed by the words “without limitation”;
(l) an obligation under this Fund Raiser’s Agreement (whether express or implied) to do something includes an obligation to cause, procure, or allow that thing to be done;
(m) an obligation under this Fund Raiser’s Agreement (whether express or implied) not to do something includes an obligation not to cause, procure, or allow that thing to be done;
(n) where any obligation in this Fund Raiser’s Agreement is expressed to be undertaken or assumed by any Party, that obligation is to be construed as including a requirement that the Party concerned exercises all rights and powers of control over the affairs of any other person which that Party is able to exercise (whether directly or indirectly) in order to secure performance of the obligation; and
(o) any thing or obligation to be done under this Fund Raiser’s Agreement which is required or falls to be done on a stipulated day shall be done on the next succeeding Business Day, if the day upon which that thing or obligation is required or falls to be done falls on a day which is not a Business Day.
3.1 In order to become a Registered Fund Raiser, the Fund Raiser shall complete a registration form and fulfil, to the satisfaction of FS at its sole and absolute discretion, the following registration criteria (and such other or additional criteria as may be notified by FS generally through the Platform or specifically to the Fund Raiser) (the “Registration Data”):
(a) the Fund Raiser shall be a company duly registered, and validly existing, under the laws of a competent jurisdiction;
(b) there shall not be any investigation or enquiry by, or order, decree, or judgment of, any court or any governmental agency or regulatory body outstanding or anticipated against the Fund Raiser or its directors or shareholders (or any party which the Fund Raiser may be vicariously liable for);
(c) the Fund Raiser, and its directors and shareholders, shall meet the credit and fraud risk criteria required by FS, and must, where requested by FS, obtain reports from credit bureaus and/or other sources as may be required by FS at the Fund Raiser’s own expense; and
(i) such evidence as may be necessary to prove that the Fund Raiser fulfils all the criteria set out in paragraphs (a) to (c) above, including but not limited to its certificate of incorporation as well as any other relevant documents and/or records lodged with or provided by the Accounting and Corporate Regulatory Authority of Singapore or, where the Fund Raiser is a company registered in any other competent jurisdiction, such similar authority in that jurisdiction;
(ii) such evidence as may be necessary to prove that all required consents and approvals for the registration of the Fund Raiser for the use of the Platform and Services have been obtained, including where applicable, resolutions of the Fund Raiser’s board and/or shareholders authorising the registration of the Fund Raiser on the Platform;
(iii) a certified true copy of the Fund Raiser’s constitution, memorandum and articles of association, or any other equivalent (as the case may be);
(iv) its financial statements (audited where applicable), bank statements, and such other accounting and business records as may be requested by FS;
(v) the details of a valid Singapore bank account in the name of the Fund Raiser, to which all payments to the Fund Raiser under this Fund Raiser’s Agreement shall be made, and from which all payments from the Fund Raiser under this Fund Raiser’s Agreement shall be made (the “Fund Raiser’s Bank Account”);
(vi) such evidence to verify and authenticate the identity of the Fund Raiser as well as the persons authorised to act on its behalf, including the passport and/or other national identification documents of the Fund Raiser’s directors;
(vii) a valid email address, and a password which complies with the Platform’s password requirements, to be used by the Fund Raiser to access the Platform, as well as other security information that may be requested by FS; and
(viii) such other evidence as may be necessary to prove that all the criteria in Clauses 3.1(a) to (d) have been complied with or satisfied and not been breached.
(a) the email address, password, and security information referred to in Clause 3.1(d)(vii) above (the “Account Information”) belong exclusively to the Fund Raiser and may not be assigned or transferred without FS’ prior written consent;
(b) it shall keep its Account Information strictly confidential and secure at all times;
(c) it shall only disclose its Account Information to its authorised employees, officers, agents, sub-contractors, and/or other representatives on a strictly need-to-know basis and shall further ensure that such persons (i) are at least 21 years of age; (ii) are informed of the confidential nature of the Account Information prior to being given access; and (iii) remember to exit from the Fund Raiser’s account at the end of each session;
(d) it shall notify FS immediately in writing if there is any actual or threatened breach of security, loss, theft, or unauthorised use of the Fund Raiser’s Account Information; and
(e) any use of or access to the Platform and/or Services and any information, data, instructions, or communications by anyone logged in through the Fund Raiser’s account shall be deemed to be the actions of the Fund Raiser and FS shall be entitled to act upon, rely on, and/or hold the Fund Raiser solely responsible and liable in respect thereof, notwithstanding that such access or use may not have been duly authorised by the Fund Raiser, and further notwithstanding any notification that may have been made to FS pursuant to Clause 3.2(d) above.
3.3 In the event that a notification pursuant to Clause 3.2(d) is made, or if FS has a reasonable suspicion that the person logged into the Fund Raiser’s account is not the Fund Raiser or an authorised person of the Fund Raiser, FS reserves the right to terminate, suspend or restrict the access of the Fund Raiser to the Platform and/or to cease acting on the Fund Raiser’s instructions.
3.4 The Fund Raiser undertakes not to register for more than one account without FS’ express approval, or register for an account on behalf of a person other than itself.
3.5 Upon successful registration of the Fund Raiser on the Platform, the Fund Raiser shall be entitled to enjoy, for the term of this Fund Raiser’s Agreement, the Services, subject to any addition, modification, or termination of such Services whether specifically or only in relation to the Fund Raiser, from time to time, at the discretion of FS without prior notice to the Fund Raiser.
3.6 For the avoidance of doubt, FS applies its own internal guidelines and policies when assessing registrations, and reserves the absolute right to decline an application by the Fund Raiser to register with the Platform, without assigning any reason. FS also reserves the right to suspend, disable, cancel, or revoke the Fund Raiser’s account from time to time in accordance with Clause 3.3, Clause 3.7, Clause 4.5, Clause 4.8, and/or Clause 12.
3.7 The Platform and the Services are not directed or intended for distribution to any person who is a citizen or resident of, or located or established in, any jurisdiction where the use of the Platform and/or Services would be contrary to applicable law or regulation, or would subject FS to any registration or licensing requirement in any such jurisdiction other than Singapore (the “Foreign Licensing Obligation”). The Fund Raiser is required to inform itself about and to observe any legal or regulatory restrictions which may affect its eligibility to access the Platform and/or use the Services. Any failure by the Fund Raiser to do so, or any Foreign Licensing Obligation imposed on FS by virtue of the Fund Raiser’s use of the Platform and/or the Services, shall constitute a breach of this Fund Raiser’s Agreement entitling to suspend, disable, cancel, or revoke the Fund Raiser’s account at FS’ sole discretion.
4.1 Subject to the provisions of this Clause 4, the Fund Raiser may, from time to time, publish information about its history, operations, creditworthiness, and financial prospects on the Platform. The Fund Raiser is solely responsible for the content or information published on the Platform in relation to the Fund Raiser.
4.2 In addition to the above, FS may also (but is not obliged to) publish additional information about the Fund Raiser, as extracted or obtained from independent third-party sources, provided always that FS is not responsible for and makes no representation whatsoever regarding the accuracy, completeness, or otherwise of any such information on the Fund Raiser on the Platform.
4.3 The Fund Raiser shall comply with all applicable laws, regulations, and rules in relation to its access to and use of the Platform and the Services, and shall not infringe the rights of, restrict, or inhibit anyone else’s use and enjoyment of the Platform. In particular, the Fund Raiser agrees and undertakes not to use the Platform for the purpose of or in connection with:
(a) causing a nuisance to, pestering, harassing or causing distress or inconvenience to any person, including any Registered Investor or Registered Fund Raiser;
(b) transmitting content that (i) is hateful, threatening, offensive (racially or ethnically or otherwise); (ii) promotes agitation or physical harm or injury against any group of individuals, or any act of cruelty to animals; (iii) constitutes or may constitute defamation; (iv) contains or may contain pornography or is in any other way sexually explicit or obscene; (v) attacks or may attack sexual orientation or religion; or (vi) is or may be discriminating in any way;
(c) uploading or otherwise transmitting content that infringes any patent, trade mark, trade secret, copyright or other intellectual property rights of any party;
(d) uploading, posting, emailing, transmitting, or otherwise making available any content that the Fund Raiser does not have right to make available under any applicable law or under a contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed under nondisclosure agreements or as part of employment relationships);
(e) engaging in any unlawful or fraudulent activity or perpetrating a hoax, engaging in money laundering, or engaging in phishing schemes or forgery or other similar falsification or manipulation of data;
(f) uploading, posting, emailing, transmitting, or otherwise making available any content that would constitute, encourage or provide instructions for an illegal activity or criminal offence, violate the rights of any party, or that would otherwise create liability or violate any applicable local or international law;
(h) uploading, posting, emailing, transmitting, or otherwise making available any content which is false, misleading, untruthful or inaccurate;
(i) harvesting contact information of other users of the Platform for any purpose, including but not limited to the sending of unsolicited communications, other than for the Fund Raiser’s use of the Services;
(j) uploading, posting, emailing, transmitting, or otherwise making available any unsolicited or unauthorised advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation; or
(k) advertising or offering to sell any goods or services for any commercial purpose.
(a) not to introduce into the Platform any code, content or other material which contains any virus, Trojan horse, worm, time bomb, cancelbot, spyware, keystroke-logger or other computer programming routine that is intended to or may damage, interrupt, interfere with, or destroy or limit the functionality of the Platform or any computer software or hardware or telecommunications equipment of another Platform user;
(b) not to use or facilitate the use or transmission of any robot, spider, search/retrieval programme or other manual or automatic device or process to retrieve, index, "data mine";
(c) not to reproduce, adapt or circumvent the navigational structure, protocols, presentation and other systems in place in connection with the Platform, nor access the Platform other than through the normal use of it; and
(d) not to hack into, interfere with, disrupt, disable, over-burden or otherwise interfere with the accessibility or impair the proper working of the Platform, the Services or servers, which shall include but is not limited to denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, reverse engineering or reprogramming.
4.5 Should any content posted by the Fund Raiser be in breach of Clause 4.3 and/or Clause 4.4 (or should FS reasonably suspect that to be the case):
(a) the Fund Raiser agrees to immediately remove all infringing parts of the content, failing which, FS reserves the right to remove such content; and/or
(b) FS shall be entitled to ban the Fund Raiser from further participation in the Platform at its own discretion, and to report such violations to the authorities as necessary.
4.6 The Fund Raiser hereby undertakes and agrees that for the term of this Fund Raisers’ Agreement and for a period of 1 year after the termination of this Fund Raiser’s Agreement, it shall not, whether by itself or through any agents or otherwise and whether on its own account, on behalf of any other person or in conjunction with others, directly or indirectly, contact any Registered Investors other than through the internal messaging system of the Platform or attempt to enter into any Investment Agreement with them other than through the Platform and Services, unless FS’ prior written consent is obtained.
4.7 Notwithstanding Clause 18 below, the Fund Raiser agrees to maintain the confidentiality of all information on the Platform users (including any information regarding the Subscription or Loans undertaken by each user, the terms of such Subscription or Loan, such user’s financial status, credit data, and/or other particulars (including the particulars of its directors, shareholders and officers, if applicable)) that the Fund Raiser obtains through the Platform or Services, or is disclosed by FS or any other user of the Platform to the Fund Raiser. The Fund Raiser further agrees not to disclose or use such information unless:
(b) the Fund Raiser is required to make such disclosure by law, regulation or by order or ruling of a court or administrative body of a competent jurisdiction or by the rules of a recognised investment exchange or any regulatory body to which the Fund Raiser submits, in which case, the Fund Raiser shall use its best endeavours to limit disclosure to the absolute minimum necessary.
4.8 The Fund Raiser hereby undertakes to fully cooperate with FS, including providing all information and/or documents which may at any time be requested for by FS, to enable FS to:
(a) comply with all applicable laws, regulations and other requirements (including ‘know-your-client’, anti-money laundering and countering the financing of terrorism laws, regulations and requirements);
(b) comply with requests by any regulator and/or its obligations under this Fund Raiser’s Agreement or any terms and conditions applicable to the Platform and/or the Services;
(c) ensure that the Fund Raiser continues to satisfy FS’ credit and fraud risk criteria; or
(d) continue to provide the Services to the Fund Raiser and/or other users of the Platform, and
the Fund Raiser shall, where so requested by FS, procure and/or provide such information and/or documents forthwith at the Fund Raiser’s own expense, failing which FS shall at its sole discretion be entitled to suspend, disable, cancel, or revoke the Fund Raiser’s account.
4.9 FS reserves the right to change, modify, suspend or discontinue the whole or any part of the Platform at any time, without prior notice, and without assigning any reason. Any such action shall not affect any accrued rights or liabilities of any Party prior to such action being taken.
5.1 Following successful registration as a Registered Fund Raiser, the Fund Raiser, if seeking to raise funds by way of an equity instrument, shall be able to submit Subscription Application(s) (as defined below) to FS.
5.2 A Subscription Application shall be submitted electronically over the Platform and include such details as may be requested in the prescribed Subscription Application form, including but not limited to:
(a) the aggregate investment amount requested by the Fund Raiser (the “Target Amount”);
(e) the projected returns to Investors, including details of ongoing provision for dividends (whether fixed or discretionary).
5.3 Upon the submission of a Subscription Application, FS shall have the right to carry out further credit and fraud checks on the Fund Raiser, its directors and/or shareholders, as well as conduct due diligence on any other aspects of the Fund Raiser’s business as FS deems necessary. The costs and expenses of any such credit and fraud checks and/or due diligence review shall be borne solely by the Fund Raiser, and the Fund Raiser shall reimburse FS for all costs and expenses (including without limitation legal and professional fees on a full indemnity basis) incurred by FS in relation to or in connection with the credit and fraud checks or due diligence exercise.
5.4 Subject to the results of the credit and fraud checks and/or due diligence review in Clause 5.3 being satisfactory to FS in its sole and absolute discretion (if any), FS shall engage in discussions with the Fund Raiser to mutually agree on:
(b) the maximum period (the “Campaign Period”) that the Subscription Request (as defined below) shall remain open for Registered Investors to give notice of their intention to participate in such Subscription Request, and the quantum of investment thereof (the “Participation Notice”);
(d) any other terms which FS may, in its absolute discretion, request in any particular case.
(collectively, the “Fund Raising Terms”).
5.5 Once the Fund Raising Terms have been finalised, the Fund Raiser must procure the delivery to FS of:
(a) a certified true copy of the resolution of the Fund Raiser’s board and/or shareholders approving: (i) the Fund Raiser’s acceptance of the Fund Raising Terms; and(ii) consequent entry into any agreement(s) FS which may specify from time to time in order to give effect to the Fund Raising Terms;
(b) such other documents as FS may, in its absolute discretion, request in any particular case; and
(c) A deposit for legal and other working fees and expenses as FS may at its discretion specify.
5.6 Upon the receipt of all the documents set out in Clause 5.5 above, FS shall proceed to post the Fund Raiser’s “Subscription Request”, based on the Fund Raising Terms, on the Platform. Only Registered Investors shall be able to review Subscription Requests on the Platform. The Subscription Request shall remain open for Registered Investors to submit a Participation Notice until such time that the aggregate amount proposed to be invested under the Participation Notices submitted match or equal the Target Amount or until the expiry of the Campaign Period, whichever is earlier (the “Participation Window”). Once posted, the Fund Raiser may not withdraw its Subscription Request.
5.7 A Registered Investor’s Participation Notice shall be considered valid only if:
(a) it is submitted electronically by the Registered Investor over the Platform in the prescribed manner in response to a Subscription Request;
(b) it is submitted before the expiry of the Participation Window (the “Campaign End-Date”);
(c) it set outs the quantum which the Registered Investor wishes to provide to the Fund Raiser for such Subscription Request (the “Proposed Subscription Quantum”), which shall be equal to or exceed the prescribed minimum tranche of S$1,000;
(d) the Proposed Subscription Quantum is paid into the Escrow Account by the Registered Investor in accordance with the payment instructions that are prompted to the Registered Investor when submitting the Participation Notice;
(e) the Registered Investor electronically executes, over the Platform, the Subscription Agreement and Escrow Agreement, in the form which FS may specify from time to time, and which are prompted to the Registered Investor when submitting the Participation Notice; and
(f) it is accompanied by a general risk disclosure acknowledgment, in the form prescribed by the MAS, as well as a confirmation of no change to any of the Registered Investor’s registration data.
(a) the Registered Investor shall be entitled to withdraw its Participation Notice by providing a withdrawal notice (the “Withdrawal Notice”) over the Platform within three days after the submission of the Registered Investor’s Participation Notice (the “Cooling-off Period”). Where one or more Registered Investors have issued a Withdrawal Notice, FS shall, at its sole discretion, be entitled to extend the Campaign End-Date, and this Clause 5 shall apply mutatis mutandis to the extended Campaign End-Date;
(b) in the event that the Fund Raiser’s account on the Platform is suspended, terminated, or revoked prior to the Disbursement Date, the Subscription Agreement shall automatically terminate, and the Proposed Subscription Quantum contributed by the Registered Investor into the Escrow Account shall be refunded by the Escrow Agent without interest thereon;
(c) in the event that the Aggregate Campaign Proceeds is less than the Target Amount upon the expiry of the Campaign End-Date, FS shall be entitled (but not obligated) to:
(i) cancel the Subscription Request, whereupon the Subscription Agreement shall automatically terminate, and the Proposed Subscription Quantum contributed by the Registered Investor into the Escrow Account shall be refunded by the Escrow Agent without interest thereon; or
(ii) proceed with the Subscription as far as practicable, provided always that the terms of Subscription shall be no less favourable to the Registered Investors than if the Target Amount had been raised;
(d) in the event that the Aggregate Campaign Proceeds exceeds the Target Amount, subject to FS’ discretion, the Target Amount shall be allocated to Registered Investors on a first-come-first-served basis (i.e. Registered Investors shall be ranked in order in which the Proposed Subscription Quantum in respect of that Registered Investor’s Participation Notice is received, in immediately available funds, in the Escrow Account, and a Registered Investor whose Proposed Subscription Quantum is received earlier in time shall have priority over one whose Proposed Subscription Quantum is received later in time). Subject to FS’ discretion, the entire Proposed Subscription Quantum of the last Registered Investor(s) whose investment causes the Aggregate Campaign Proceeds to exceed the Target Amount may be refunded by the Escrow Agent to the relevant Registered Investor(s) without interest thereon, and the Campaign End-Date may be extended by FS at its sole discretion, and this Clause 5 shall apply mutatis mutandis to the extended Campaign End-Date.
For illustration purposes, in the event that the Campaign Period expires on 5 January 2018, the Target Amount is $1,000,000 and the Aggregate Campaign Proceeds amount to $1,100,000 in the following proportions:
10. LATE PAYMENT & EVENTS OF DEFAULT
10.1 Subject to Clause 10.2 below, if the Fund Raiser defaults in making full payment of any amount due under a Repayment Schedule and as a result of such default, the amount held on behalf of the Fund Raiser in the Escrow Account is insufficient to cover the payments due and payable to the Registered Investors under such Repayment Schedule, the Fund Raiser may remedy the breach and continue the Loan Agreements with the Registered Investors subject to settling the full outstanding amount, together with the next instalment payment, when due (the “Grace Period”), plus a late payment fee amounting to 1% of the outstanding Principal Loan Amounts at the point of default, or the sum of S$1,000, whichever is higher (the “Grace Period Fee”).
10.2 In the event that the Fund Raiser defaults on the final (or only) instalment payment in the Repayment Schedule and there are no further instalment payments due under the Repayment Schedule, the Grace Period referred to in Clause 10.1 shall not apply and instead the Fund Raiser shall have 30 days to settle the full outstanding amount together with the Grace Period Fee in order to remedy the breach and continue the Loan Agreements with the Registered Investors.
10.3 The Grace Period Fee shall be for the account of, and distributed to FS.
Events of Default
10.4 An Event of Default shall be deemed to have occurred for the purposes of Clause 12.1(b), read together with Clause 11(k), only if the Fund Raiser fails to pay the sum due at the end of the Grace Period or the end of the period referred to in Clause 10.2 (including the Grace Period Fee) in full. For the avoidance of doubt, in the event that the Fund Raiser makes full payment of the amount due at the end of the Grace Period or the end of the period referred to in Clause 10.2, an Event of Default shall not be deemed to have occurred, notwithstanding that the Fund Raiser failed to comply with the repayment of debt under the Repayment Schedule.
10.5 If FS becomes aware or determines that an Event of Default has occurred, FS shall be entitled to:
(a) where applicable, request for an explanation for the Event of Default from the Fund Raiser;
(b) where applicable, report such Event of Default to third party credit bureaus from which the credit ratings of the Fund Raiser were obtained, and adjust FS’ internal credit rating of the Fund Raiser; and/or
(c) provide written notice to the Fund Raiser, all participating Registered Investors and the Escrow Agent (the “Termination Notice”) that all Loan Agreements entered into between the Fund Raiser and Registered Investors shall automatically terminate forthwith from the date of such Termination Notice.
10.6 Upon such termination:
(a) the outstanding Principal Loan Amounts and all accrued interest thereon;
(b) the outstanding Grace Period Fee (if applicable); and
(c) a default termination fee amounting to 1% of the Outstanding Principal Loan Amounts, or the sum of S$1,000, whichever is higher (“Default Termination Fee”),
(collectively, the “Default Settlement Amount”),
shall become immediately due and payable by the Fund Raiser. For the avoidance of doubt, the Default Termination Fee shall be for the account of FS, for the purpose of defraying FS’ administrative costs in connection with the Fund Raiser’s default.
10.7 The Fund Raiser shall be required to deposit the Default Settlement Amount into the Escrow Account within two (2) Business Days of receipt of the Termination Notice from FS. Upon confirmation of receipt by the Escrow Agent, the Escrow Agent shall:
(a) pay the Default Termination Fee to FS;
(b) distribute the Grace Period Fee (if any) in accordance with Clause 10.3; and
(c) repay the outstanding Principal Loan Amount and accrued interest thereon to each Registered Investor.
10.8 In the event the Fund Raiser fails to make full payment of the Default Settlement Amount within the stipulated time period in Clause 10.7:
(a) default interest (the “Default Interest”) shall accrue at the rate of 4% per month, calculated based on a 360-day year, on the outstanding Principal Loan Amounts from the date of the occurrence of the Event of Default until full payment is received by the Escrow Agent; and
(b) FS shall be entitled to issue an automated letter of demand to the Fund Raiser and if the Fund Raiser neglects or fails to comply with such demand, FS shall be further entitled to:
(i) at the cost and expense of the Fund Raiser, appoint such persons (including but not limited to third party professional debt collectors and/or legal advisers and/or bailiffs) to collect from and/or institute proceedings against the Fund Raiser for such amounts due to the affected Registered Investors (the “Affected Investors”) (as well as FS, if applicable) and for the avoidance of doubt, the costs of engaging such third parties for debt collection (the “Debt Recovery Cost”) shall not only form part of the aggregate outstanding debt, but shall also be deductible upfront from any monies recovered from the Fund Raiser prior to any distribution to the Affected Investors;
(ii) facilitate a meeting between the Affected Investors to discuss and agree on any further course of action; and
(iii) undertake such action as may from time to time be authorised (either collectively or separately) by the Affected Investors, including but not limited to requesting the Fund Raiser to restructure any remaining amounts payable to the Affected Investors under the Loans and amend the Loans, in a manner that FS deems fit.
10.9 Subject to any agreed loan restructuring pursuant to Clause 10.8, in the event that the Fund Raiser’s total outstanding debt (comprising of the Default Settlement Amount, the Default Interest and Debt Recovery Cost) is not paid or collected in full by the Long-Stop Date, the Fund Raiser hereby authorises the Escrow Agent to apply any outstanding monies held on behalf of the Fund Raiser in the Escrow Account in the following order of priority:
(a) firstly, to reimburse FS for the Debt Recovery Costs incurred (if any);
(b) secondly, to pay FS the Default Termination Fee and Grace Period Fee; and
(c) thirdly, to distribute the surplus rateably amongst the Affected Investors according to their respective sums owed (including any Default Interest owed).
10.10 For the avoidance of doubt, neither FS nor the Escrow Agent shall, in any event, be liable to any Registered Investor for any shortfall in the amount recovered from the Fund Raiser and each Registered Investor shall, in any event, be free to determine whether an Event of Default has occurred and/or to pursue its own direct claim against the Fund Raiser, as it may deem fit, subject to notifying FS in advance of such intention.
11. FUND RAISER’S REPRESENTATION AND WARRANTIES
The Fund Raiser warrants, represents and undertakes that:
(a) it is a company duly incorporated and validly existing under the laws of a competent jurisdiction, with full power and authority to own its properties and to conduct its business as currently conducted;
(b) the signing and delivery of this Fund Raiser’s Agreement and the consummation of the transactions contemplated by it will not result in the breach of any of the terms or conditions of, or constitute a default under, any agreement, commitment or other instrument to which it is a party or by which it or its assets are bound, or violate any law, order, regulation of any governmental or judicial body or agency (including any relevant stock exchange or securities council) to which it is a party or by which it or its assets are bound, whether in Singapore or elsewhere;
(c) it has full legal capacity and the power and authority to enter into and give effect to its obligations under this Fund Raiser’s Agreement and all steps required to be taken by it to authorise the entry into and giving effect to this Fund Raiser’s Agreement have been properly taken;
(d) the obligations expressed to be assumed by it under this Fund Raiser’s Agreement are legal, valid and binding obligations enforceable against the Fund Raiser in accordance with the terms herein;
(e) no litigation, arbitration or administrative proceedings are taking place, pending or threatened against it, any of its directors or any of its assets;
(f) no governmental, administrative, regulatory or other official investigation or inquiry concerning the Fund Raiser is in progress, threatened or pending and there are no circumstances likely to lead to any such investigation or inquiry. No claims, complaints, demands or notices (whether in writing or otherwise) have been received by the Fund Raiser in respect of the same;
(g) it has always complied with the law in all respects;
(h) it has not at any time been charged with, pleaded guilty to or been found guilty of a criminal offence, or is currently the subject of any criminal investigation or inquiry, whether in Singapore or elsewhere;
(i) it has never been censured, disciplined, publicly criticised by or made the subject of a court order at the instigation of any regulatory body or other authority concerned with financial services or other business activity;
(j) it has not been the subject of any civil action, whether in Singapore or elsewhere, which resulted in a court verdict against the Fund Raiser pertaining to the Fund Raiser’s business activities;
(k) it is able to pay its debts as they fall due (including repayments that are due under the Loan Agreements, subject always to the Grace Period or the period referred to in Clause 10.2);
(l) the value of the Fund Raiser’s assets is equal or more than its liabilities (taking into account contingent liabilities);
(m) no corporate action, legal proceedings or other procedure or step has been taken in relation to:
(i) the suspension of all or a material part of the payments, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Fund Raiser;
(ii) a composition, compromise, assignment or arrangement with any creditor of the Fund Raiser in respect of all or a material part of its indebtedness;
(iii) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of the Fund Raiser or all or a material part of its assets;
(iv) enforcement of any security over, or any expropriation, attachment, sequestration, distress or execution in respect of, all or a material part of the assets of the Fund Raiser; or
(v) any analogous procedure or step in any jurisdiction;
(n) it shall take all steps, including passing the necessary corporate resolutions, required to authorise all Subscription Applications or Loan Applications submitted and all agreements entered thereto (including any Loan Agreements, Escrow Agreements, or otherwise), and the obligations expressed to be assumed by it under such agreements shall be legal, valid and binding obligations enforceable against the Fund Raiser in accordance with the respective terms therein;
(o) the signing and delivery of any such agreement (including any Loan Agreement, Escrow Agreement or otherwise) and the consummation of the transactions contemplated under such agreement will not result in the breach of any of the terms or conditions of, or constitute a default under, any agreement, commitment or other instrument to which it is a party or by which it or its assets are bound, or violate any law, order, regulation of any governmental or judicial body or agency (including any relevant stock exchange or securities council) to which it is a party or by which it or its assets are bound, whether in Singapore or elsewhere;
(p) it shall not act in a manner that constitutes a breach of any term of any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise, or this Fund Raiser’s Agreement);
(q) all information provided by the Fund Raiser pursuant to Clause 3.1 (prior to it becoming a Registered Fund Raiser), in any Loan Request, through the Platform, or under this Fund Raiser’s Agreement shall be true, correct, and not misleading in any respect as at the date it is provided and it shall forthwith notify FS in writing when any information earlier provided becomes untrue, false or misleading in any respect;
(r) it is solely responsible for any activity undertaken on its Platform account;
(s) it will only use the Platform for its intended purpose and not for or in furtherance of any unlawful or fraudulent purposes or in a manner that may cause FS to incur legal liability or disrupt others’ use of the Platform;
(t) it will not take any action that may interfere with or disrupt the smooth and/or efficient operation and/or performance of the Platform;
(u) any Subscription Requests or Loan Requests made, and any funds obtained thereto, by the Fund Raiser shall be by the Fund Raiser as principal and not as nominee for any other person;
(v) it shall promptly notify FS of any instances in which a Registered Investor contacts the Fund Raiser to request for the details relating to the Fund Raiser including but not limited to the contact information of the shareholders, directors or officers of the Fund Raiser;
(w) it shall not pass any resolution approving the change in directors of the Fund Raiser without first obtaining the prior written consent of FS; and
(x) it shall promptly notify FS of the occurrence of any event described in Clause 12.1(b) to (f) below.
12. SUSPENSION AND TERMINATION OF SERVICE
12.1 Without prejudice to Clause 3.6 above, FS reserves the right to, temporarily or permanently, (a) terminate, suspend or restrict the access of the Fund Raiser to the Platform, (b) refuse use of the Services by the Fund Raiser, or (c) reject, cancel, interrupt, remove or suspend any Subscription Application, Subscription Request, Loan Application, or Loan Request, at any time, without incurring liability of any kind to the Fund Raiser, at its absolute discretion and without assigning any reason. Without limiting the generality of the foregoing, FS may do so if any of the following events occur:
(a) the Fund Raiser fails to make any payment to FS when due, whether under this Fund Raiser’s Agreement or for the Platform or Services;
(b) any representation or warranty made by the Fund Raiser under this Fund Raiser’s Agreement or through any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise) is incomplete, untrue, incorrect, or misleading in any material respect;
(c) the Fund Raiser is in breach of the terms of this Fund Raiser’s Agreement or any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise);
(d) it is or becomes unlawful for the Fund Raiser to perform any of its respective obligations under this Fund Raiser’s Agreement or any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise);
(e) there is a change in the nature and/or scope of the Fund Raiser’s business;
(f) the Fund Raiser ceases or threatens to cease to carry on any material part of its business;
(g) any event or circumstance occurs which FS believes (in its sole and absolute discretion) would have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or prospects of the Fund Raiser;
(h) FS reasonably suspects that the Fund Raiser’s account has been, is or is going to be used for illegal, fraudulent, or unauthorised purposes;
(i) FS reasonably suspects that the Fund Raiser is in breach of the terms of this Fund Raiser’s Agreement or any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise);
(j) the Fund Raiser does not access its account for a continuous period of 365 days;
(k) it is or becomes unlawful for FS to perform any of its obligations under this Fund Raiser’s Agreement;
(l) there is scheduled downtime or recurring downtime;
(m) FS undertakes any modification, upgrading, suspension, discontinuation of the provision of or removal of the Platform and/or Services (whether in whole or in part) in accordance with Clause 4.9; or
(n) there is an occurrence of a Force Majeure Event.
12.2 The Fund Raiser may terminate its account, only if:
(a) there is no Loan Agreement currently in force between the Fund Raiser and a Registered Investor;
(b) there is no outstanding Subscription Application, Subscription Request, Loan Application, or Loan Request by the Fund Raiser; and
(c) there are no outstanding fees or payments to be paid to FS or any Registered Investors.
12.3 Any termination, suspension or revocation of the Fund Raiser’s account shall not affect any accrued rights and/or liabilities prior to such action being taken or the respective obligations, covenants or undertakings which are, expressly or impliedly, to survive such termination, suspension or revocation. For the avoidance of doubt, any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise) entered into by the Fund Raiser prior to the termination, suspension or revocation of the Fund Raiser’s account shall continue in full force and effect, notwithstanding such termination, suspension, or revocation.
13. FORCE MAJEURE
FS shall not be in breach of this Fund Raiser’s Agreement, nor liable for any failure or delay in the performance of any other obligations under this Fund Raiser’s Agreement arising from or attributable to acts, events, omissions, accidents beyond its reasonable control (“Force Majeure Event”), including but not limited to any of the following:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers or subcontractors;
(i) interruption or failure of utility service; or
(j) net access failure, ISP equipment failure, host equipment failure, communications network failure and/or power failure.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 The names, images and logos (the “Marks”) identifying FS or third parties and their products and services are subject to copyright, design rights and trade marks of FS and/or third parties, and all rights to the Marks are expressly reserved by FS or the relevant third parties. Nothing contained in this Fund Raiser’s Agreement shall be construed as conferring by implication, estoppel or otherwise any licence or right to use any trademark, patent, design right or copyright of FS or any other third party, without the prior written consent of FS or such third party. The name of FS or any other of FS’ Marks may not be used in any way, including in any advertising or publicity, or as a hyperlink, without the prior written permission of FS.
14.2 FS and its affiliates and licensors own and retain all right, title and interest in and to (a) the Platform; (b) all hardware, software, and other items used to provide the Services; and (c) all materials, including without limitation, the information, databases, data, documents, online graphics, audio and video, in the Platform, which contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorised by FS, the Fund Raiser shall not imitate, copy, reproduce, modify, publish, transmit, distribute, perform, display, sell, license, create derivative works from, transfer, disassemble, decompile, reverse engineer or otherwise attempt to discover the source code of, in full or in part and in any way, the Platform or the Services or any information, products, services or other content available on the Platform (the “Platform Contents”). Unauthorised modification and/or interference, misuse, abuse or unauthorised use of the Platform or the Platform Contents may violate FS’ and/or other third party owners’ intellectual property rights, and may also constitute an offence under the Computer Misuse Act (Cap. 50A) of Singapore.
14.3 Nothing contained in this Fund Raiser’s Agreement shall be construed as conferring on the Fund Raiser by implication, estoppel or otherwise any licence or right to use the intellectual property rights in the Platform Contents, save that the Fund Raiser may:
(a) retrieve and display the Platform Contents on any compatible device owned by the Fund Raiser; and
(b) retain a copy of the Platform Contents for archival purposes;
provided that the Fund Raiser keeps intact all accompanying copyright and other proprietary notices and further provided that the Platform Contents are used solely for the purpose of obtaining Loans during the term of this Fund Raiser’s Agreement and upon such terms and restrictions of use as prescribed in this Fund Raiser’s Agreement.
14.4 By submitting, posting or displaying content on or through the Platform, or agreeing or procuring for such content to be posted or displayed, the Fund Raiser grants to FS a worldwide, non-exclusive, royalty-free, and irrevocable licence to host, transmit, distribute, reproduce, adapt, publish, and use such content (including any ideas, inventions, concepts, techniques or know-how disclosed therein) for the purposes of (a) displaying, operating, distributing and promoting the Platform; and/or (b) providing, developing, enhancing and marketing the Services. FS further reserves the right to retain an archival record of all such content including those deleted or removed by the Fund Raiser.
14.5 FS undertakes not to post any content that infringes the intellectual property rights or other rights of any third party, and further warrants that it shall be able to demonstrate to FS’ full satisfaction upon request that (i) the Fund Raiser owns or otherwise controls all rights to the content in its postings, or that the content in its postings is in the public domain; or (ii) the Fund Raiser has full authority to act on behalf of any and all owners of any right, title or interest in and to any content in its postings to use such content and to grant the licence rights set out in Clause 14.4 above.
14.6 In the event that the Fund Raiser downloads any software, applications or script from the Platform, the software applications or script, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to the Fund Raiser by FS on a non-exclusive, non-transferable, and non-sublicensable basis for the sole purpose only of utilising the Services in accordance with this Fund Raiser’s Agreement. For the avoidance of doubt, FS does not transfer title ownership or any other rights to the Software to the Fund Raiser. The Fund Raiser shall not redistribute, sell, decompile, reverse engineer, disassemble or otherwise deal with the Software. Any Software downloaded from the Platform shall be at the Fund Raiser’s own risk.
15.1 The Fund Raiser acknowledges that FS’ principal role is to operate the Platform to bring Registered Fund Raisers and Registered Investors together, and to help administer the Subscription process, or the process of granting Loans, and to facilitate the payments and collection of sums due under or in connection with those Loans (including taking certain actions on behalf of Affected Investors upon the default of a Registered Fund Raiser, as may be requested from time to time).
15.2 Save as set out in this Fund Raiser’s Agreement, FS will not perform any management or administrative functions on the Fund Raiser’s behalf. FS is not and will not be acting in any capacity as a placement agent or a financial advisor for any Subscription or Loan that takes place, if any. FS does not in any manner warrant that a Subscription Request or Loan Request can or will be fulfilled, or that any Registered Investor who has submitted a valid Participation Notice will perform the terms of the relevant agreements in accordance with the terms thereof.
15.3 The content and material available on the Platform is for informational purposes only and should not be regarded as an offer, solicitation, invitation, advice (investment, legal, tax or otherwise) or recommendation to buy or sell investments, securities or any other financial services or banking product. Under no circumstances will FS be responsible for any loss, damage or liability incurred by the Fund Raiser resulting from its reliance on information or other content posted on the Platform.
15.4 The Fund Raiser acknowledges that the use of the Platform and Services involves risks, including without limitation, the risk of the Platform discontinuing its services and the risks of Subscription Requests or Loan Requests not being fulfilled or fulfilled to the satisfaction of the Fund Raiser.
15.5 The Fund Raiser acknowledges and agrees that this Fund Raiser’s Agreement and the membership of the Fund Raiser of the Platform do not in any way constitute an obligation on FS to procure funding for the Fund Raiser or constitute a warranty by FS that such funding will be available.
15.6 The Services, Platform and Platform Content are provided on an “AS IS” and “AS AVAILABLE” basis without any representations or any kind of warranties whatsoever (whether express, statutory or implied by law). FS and its licensors expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including without limitation, the warranties as to the functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for any general or particular purpose, non-infringement of proprietary rights, and good title, of the Services, Platform and Platform Content.
15.7 Without limiting the foregoing, FS does not warrant that the Services, functions contained in or access to the Platform or other Platform Content will be timely, uninterrupted, or error-free without omission, that defects will be corrected, or that the Platform or its Platform Contents will be free of infection by computer viruses, and/or other harmful or corrupting code, programme, macro, or such other unauthorised software, or that the download, installation, or use of any Software or Platform Content in or with any computer will not affect the functionality or performance of the computer. The Fund Raiser (and not FS) shall assume the entire cost of all necessary servicing, repair, or correction, including any defect, problem, or damage in the computer. The Fund Raiser agrees not to hold FS liable for the loss of any of the content in its computer that is due to use of the Platform, the Services, or the Platform Content.
15.8 The Fund Raiser acknowledges that the Platform enables other users to upload content onto the Platform and send messages via the internal messaging system, and that some of such content may be offensive, annoying, unlawful, contain viruses, or cause damage to the Fund Raiser. As such, the Fund Raiser agrees to access and use such content at its own risk and with care and discretion. While FS may remove any such content brought to its notice at its sole and absolute discretion, the Fund Raiser acknowledges and agrees that FS is under no obligation to monitor or review the content posted by other users of the Platform, and assumes no responsibility or liability arising from such content. FS further disclaims all responsibility and liability arising from the actions of other users of the Platform (including but not limited to any harassment of the Fund Raiser or its directors or shareholders or any proceedings taken out against the Fund Raiser).
15.9 The Platform contains links to other websites which are not maintained by FS. Similarly, other websites may contain links to the Platform. FS has no control over such sites and resources, and the Fund Raiser acknowledges and agrees that FS is not responsible for the availability or contents of those websites and shall not be liable for any damages or injury arising from the availability or contents of those websites. Any links to other websites are provided as a convenience to the Fund Raiser as a user of the Platform, and does not imply FS’ endorsement of the linked website or association with their operators. FS disclaims all responsibility and liability, direct or indirect, for any damage or loss (including any virus, spyware, malware, worms, errors or damaging materials contained in the linked sites) caused or alleged to be caused by or in connection with the use or reliance on any such content available on or through any such site or resource, which are accessed and used at the Fund Raiser’s own risk.
15.10 Certain Services may be provided by third parties (the “Third Party Services”), and such Third Party Services may be incorporated into other Services, offered on the Platform and/or provided through links on the Platform. FS bears no responsibility for the accuracy, reliability, completeness, or suitability of the Third Party Services or any content of the Third Party Services, and hereby expressly disclaims all liabilities and responsibilities relating to the Fund Raiser’s use of and reliance on the Third Party Services. The use of such Third Party Services shall constitute the Fund Raiser’s consent to the disclosure of information provided by the Fund Raiser to the Platform to the providers of the Third Party Services, and FS bears no responsibility for the usage, retention, or disclosure by such third party providers of the information provided.
15.11 The Fund Raiser agrees that the Services may include advertisements which may be sent unsolicited to the Fund Raiser. The Fund Raiser’s dealings with, or participation in promotions of, advertisers found on or through the Platform, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between the Fund Raiser and such advertiser. FS shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Platform.
15.12 The Fund Raiser acknowledges that FS takes no responsibility to control, review, edit, or amend (a) the content of advertisements on the Platform; and (b) the contents posted or submitted by other users of the Platform or made available in connection with the Third Party Services. Opinions, assessments, advice, statements, or other information or content made available through the Platform, but not directly by FS (including the statements of other users and the content of third party advertisements and Third Party Services), are those of their respective authors and should be used, accepted, relied upon only with care and discretion and at the Fund Raiser’s own risk. Such authors or providers are solely responsible for such content. FS does not: (a) guarantee the timeliness, accuracy, integrity, quality, completeness, reliability or usefulness of any information; or (b) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice or statement made on the Platform.
15.13 For the avoidance of doubt, FS does not represent itself as being in any way connected, associated or affiliated with (a) any third party that may be referred to on the Platform; (b) the providers of any Third Party Services; (c) the operators of third party websites which the Platform links to or from; or (d) the vendors of any goods or services that may be advertised on the Platform.
15.14 FS does not warrant or represent that any information, data, or other content that the Fund Raiser stores on or provides to the Platform (collectively the “User Content”) will not be subject to inadvertent damage, temporary unavailability, corruption, or loss. Without limiting the generality of the foregoing, the Fund Raiser acknowledges that transmission over the internet and e-mail may be subject to interruption, transmission blackout or delayed transmission due to internet traffic or incorrect data transmission due to the public nature of the internet. The Fund Raiser undertakes to make archival copies of all User Content. To the maximum extent permitted by law, FS will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of, or failure to store, access, or encrypt any User Content.
15.15 The Fund Raiser further agrees that FS does not warrant the security of the User Content and the Fund Raiser accepts the risk that any User Content transmitted or received through the Platform and/or Services may be accessed by unauthorised third parties and/or disclosed by FS to third parties purporting to be the Fund Raiser or purporting to act under the Fund Raiser’s authority.
15.16 The Fund Raiser also acknowledges that user authentication on the internet is generally difficult to establish, and hereby accepts the risk that online activities may be subject to fraudulent or deceptive activity. FS does not warrant or confirm: (i) each user’s purported identity; and (ii) that users have not misused their usernames or passwords. FS consequently will not be held liable where there is a dispute or claim involving or relating to the identity of any user.
16. LIMITATION OF LIABILITY
16.1 FS, and its respective directors, officers, employees, agents, affiliates, subsidiaries, contractors, suppliers, successors and assigns, shall not be liable to the Fund Raiser for any direct, indirect, punitive, incidental, special, economic, or consequential damages, losses, expenses or liabilities, including without limitation, damages for loss of use, loss of contracts, loss of opportunity, loss of reputation or goodwill, loss of revenue or anticipated profits, loss or corruption of information or data, or losses to third parties, arising out of or in any way connected with:
(a) the use or performance of the Platform or Services;
(b) the delay or inability to use the Platform or Services;
(c) the provision of or failure to provide the Platform or Services;
(d) the suspension, disablement, cancellation, or revocation of the Fund Raiser’s account in accordance with this Fund Raiser’s Agreement;
(e) any information, data, software, products, services and related graphics obtained through the Platform or Services;
(f) any reliance on any statement, opinion, representation or information on the Platform or Services; or
(g) the inability of the Fund Raiser to have its Subscription Requests or Loan Requests fully funded by Registered Investors through the Platform,
whether the cause of action is based in contract, tort, strict liability or otherwise, and whether or not FS was informed of the possibility of such loss or damage, except where such loss or damage arises from fraud or wilful default.
16.2 In the event that FS is liable for any damages, the Fund Raiser agrees that FS’ aggregate liability to the Fund Raiser for any and all damages, losses and causes of action (whether in contract, tort, or otherwise including, without limitation, negligence, or otherwise) in relation to the Platform and Services shall not exceed the total amount of fees and charges paid by the Fund Raiser to FS in the 6 month period immediately preceding the time such liability arose.
16.3 Without prejudice to the other provisions herein, the Fund Raiser hereby agrees to indemnify and hold harmless FS and its subsidiaries, affiliated companies, directors, officers, agents, partners, and employees (collectively the “Indemnified Parties”), at all times against any and all actions, proceedings, costs, claims, expenses (including all legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages (whether in tort, contract or otherwise) whatsoever and howsoever arising, including without limitation claims made by third parties and claims for defamation, infringement of intellectual property rights, death, bodily injury, wrongful use of computers, unauthorised or illegal access to computers (including but not limited to hacking), property damage or pecuniary losses, which the Indemnified Parties may sustain, incur, suffer or pay, arising out of, in connection with or pursuant to:
(a) the Indemnified Parties’ performance of obligations and responsibilities to the Fund Raiser under this Fund Raiser’s Agreement;
(b) the taking of any steps by the Indemnified Parties pursuant to instructions given by the Fund Raiser in relation to the Platform and/or Services;
(c) the involvement of the Indemnified Parties in any agreement entered into pursuant to any Subscription Application or Loan Application (including any Loan Agreement, Escrow Agreement, or otherwise);
(d) the access to and/or the use of the Platform or Services by the Fund Raiser, whether or not such access or use was authorised or whether it was due to any act or omission on its part;
(e) the breach of this Fund Raiser’s Agreement, and/or any terms and conditions applicable to the Platform and/or Services, by the Fund Raiser;
(f) the violation by the Fund Raiser of any rights of another person or entity;
(g) any negligence, fraud, and/or misconduct by the Fund Raiser; or
(h) the breach by the Fund Raiser of any statutory requirement, duty or law.
17. PRIVACY & DATA PROTECTION
17.1 For the purpose of this Clause, “personal information” means any information, whether true or not, by which the Fund Raiser (or its directors, shareholders or officers) can be personally identified, including its name, address, telephone number, email address, billing and account information, credit or debit card information and other information incidental to providing goods or services.
17.2 The Fund Raiser agrees that FS may collect personal information from it when it voluntarily provides FS with such information, such as when registering with the Platform, adding information to its account (including but not limited to amending or adding to the Account Information), submitting a Loan Application or making payment for Services (such as payment of the Security Deposit or the Service Fee), or through the Fund Raiser’s utilisation of the Services or the Fund Raiser’s access or viewing of the Platform. Personal information submitted by the Fund Raiser via the Platform shall be deemed to be collected by FS with the Fund Raiser’s permission.
17.3 The Fund Raiser acknowledges and agrees that all personal information collected from the Fund Raiser via the Platform or otherwise are non-proprietary and non-confidential and may be utilised by FS:
(a) for the specific purpose for which it was volunteered;
(b) for the provision of Services that are requested by the Fund Raiser;
(c) to confirm the Fund Raiser’s identity and ensure that it is eligible to access and use the Services provided on the Platform;
(d) to assess and evaluate the Fund Raiser’s Subscription Application(s) or Loan Application(s);
(e) to conduct due diligence checks in accordance with all applicable laws (including any ‘know-your-client’, anti-money laundering and countering the financing of terrorism laws, regulations and requirements);
(f) to verify and approve the postings and disclosures the Fund Raiser makes on the Platform;
(g) to process and respond to any enquiries or requests raised by the Fund Raiser;
(h) to assess and determine whether an Event of Default has occurred;
(i) to facilitate debt recovery or other follow-up action on behalf of Affected Investors;
(j) to evaluate whether to, temporarily or permanently, suspend, revoke, or terminate the Fund Raiser’s account;
(k) to understand the Fund Raiser’s needs and preferences;
(l) to inform or update the Fund Raiser about products or Services that may be of interest to the Fund Raiser, subject to Clause 17.12;
(m) to market, sell or provide the Platform and/or Services;
(n) to monitor, manage and develop FS’ business and operations, administer accounts, and collect and process payments;
(o) to conduct statistical or other types of analysis (whether anonymised or not) for research or business intelligence purposes, so as to (i) maintain or improve the Platform’s content, appearance, design and/or utility; (ii) maintain or improve FS’ Services in general; or (iii) sell such research or intelligence data in an aggregated or non-personally identifiable form to third parties;
(p) to update the Fund Raiser about changes to the Platform or FS’ operations;
(q) to conduct surveys, research and evaluations to obtain feedback;
(r) to be used on any social media platform;
(s) to detect and protect FS and other third parties against negligence, fraud, theft and other illegal activities;
(t) to comply with, or as permitted by, any legal or regulatory requirement, process or provision; or
(u) as permitted under any other agreement between the Fund Raiser and FS.
17.4 The Fund Raiser further agrees that the personal information provided by the Fund Raiser to FS may be disclosed:
(a) in the Fund Raiser’s Subscription Requests or Loan Requests, if such information is deemed by FS, in its sole and absolute discretion, to be relevant or material to the Registered Investors’ decision of whether to grant a Loan to the Fund Raiser;
(b) if the Fund Raiser has expressly or implicitly consented or such disclosure, or may be deemed to have consented to such disclosure;
(c) if such disclosure is necessary to provide the Fund Raiser with the products and/or Services requested for by the Fund Raiser, or to respond to the Fund Raiser’s queries;
(d) if such disclosure is necessary for the operation of the Platform or FS’ internal processes;
(e) to third parties in connection with any Third Party Services (including without limitation third party credit bureaus, professional debt collectors and law firms), and further agrees that such personal information provided may extend beyond what is strictly required for the provision by the third parties of the Third Party Services and that FS shall not be liable for the manner or care in which providers of Third Party Services maintain, protect or utilise the Fund Raiser’s personal information;
(f) to third parties who provide services to FS, such services including payment processing, maintenance of the Platform or Services, monitoring of Platform activity, serving of Platform content, maintenance of FS customer database and/or administering of emails;
(g) if required by law or in a good faith belief that such disclosure is reasonably necessary (i) to comply with legal process or regulatory requirements applicable to FS; (ii) to enforce this Fund Raiser’s Agreement; (iii) to investigate and defend against any third party claims or allegations; or (iv) prevent or stop any illegal activity, security breaches, or harm to the Platform, FS’ interests, or any of FS’ employees; or
(h) if FS is the subject of a takeover and the Fund Raiser’s information forms part of FS’ assets to be transferred to the acquiring entity.
17.5 FS shall be entitled to combine personal information provided by the Fund Raiser on the Platform with other information provided by the Fund Raiser to FS, and with information from third parties. For the avoidance of doubt, such information from third parties shall include reports from credit bureaus and/or other sources as may be required by FS for its credit and fraud checks.
17.6 The Fund Raiser’s personal information is maintained by FS in electronic form on its equipment, and on the equipment of its employees. Such information may also be converted to physical form from time to time. FS may use technical and/or organisational security measures to protect the Fund Raiser’s personal information against accidental and unlawful destruction, loss or alteration, and against unauthorised disclosure or access. Nevertheless, the Fund Raiser acknowledges and agrees that communications through the internet are not entirely secure and that any information transferred to FS is done so at the Fund Raiser’s own risk. FS does not warrant or guarantee that the information provided by the Fund Raiser will not be accessed, copied, used, or disposed of in breach of FS’ security measures, and the Fund Raiser agrees not to hold FS liable or responsible for any loss or damage resulting therefrom. In the event of such a breach, FS will, as far as reasonably possible, promptly notify the Fund Raiser.
17.7 Personal information collected by FS may be transferred, stored and/or processed outside of Singapore. The Fund Raiser agrees that it consents to any such transfer, storage or processing of information outside Singapore. FS will comply with its obligations under the Personal Data Protection Act 2012 and Personal Data Protection Regulations 2014 in relation to personal information transferred, stored, or processed outside Singapore for as long as the information remains in FS’ possession or control during the transfer. FS will take appropriate steps to ensure that the recipient of the personal information who is located outside Singapore is legally obliged to provide a comparable standard of protection for the personal information. However, if personal information needs to be transferred to or stored or processed in countries that have less stringent personal data protection laws than Singapore in order to provide the Fund Raiser with the Services requested, the Fund Raiser is deemed to consent to such transfer, storage, or processing. The Fund Raiser may at any time inform FS that it wishes to withdraw its consent to such transfer, storage, or processing of its personal information.
17.8 For the term of this Fund Raiser’s Agreement, the Fund Raiser shall maintain and promptly update its personal information to keep it true, accurate, current and complete. If the Fund Raiser provides any personal information that is untrue, inaccurate, out of date or incomplete (or becomes untrue, inaccurate, out of date or incomplete), or FS has reasonable grounds to suspect that the personal information provided by the Fund Raiser is untrue, inaccurate, out of date or incomplete, FS may, at its sole discretion, discontinue the Fund Raiser’s access to the Platform and/or Services. There may be circumstances where FS will not correct, delete or update the Fund Raiser’s personal information, such as (a) where the personal information is opinion data that is kept solely for evaluative purposes; or (b) the personal information is in documents related to a prosecution if all proceedings relating to the prosecution have not been completed.
17.9 FS shall retain all of the Fund Raiser’s personal information collected for as long as the Fund Raiser continues to use the Platform. If the Fund Raiser’s account is terminated in accordance with Clause 3.6 and/or Clause 12, FS shall not retain the Fund Raiser’s personal information for longer than is required for the purposes for which the information may lawfully be used or is otherwise required under any other law for the time being in force, provided that FS may hold the Fund Raiser’s personal information in an anonymised and aggregated form for analytic purposes for as long as necessary for FS to provide its Services effectively.
17.10 The Fund Raiser may withdraw its consent to FS’ continued use and disclosure of its personal information at any time by providing at least 30 days’ written notice to FS. In withdrawing its consent, the Fund Raiser acknowledges that FS may not be able to provide or continue providing certain Services to the Fund Raiser and that FS may cease such provision accordingly without any liability.
17.11 The Fund Raiser may also seek access to its personal information (to a reasonable extent and as permitted by the Personal Data Protection Act 2012) or seek an account of its personal information. Such account shall be in respect of how the Fund Raiser’s personal information has been or may have been generally used or disclosed within the year before the date of the Fund Raiser’s request. FS reserves the right to charge a reasonable administrative fee for carrying out the Fund Raiser’s request.
17.13 The Fund Raiser consents to receive email messages from and through FS, including messages regarding FS’ products and Services, upcoming special events or seminars, as well as other relevant information that may be of interest to the Fund Raiser, to its email address as set out in Clause 3.1(d)(vii) or such other email address as may be notified by the Fund Raiser to FS in accordance with Clause 19.1 of this Fund Raiser’s Agreement, provided that the Fund Raiser shall always have the option to decline such communications by following the directions included in FS’ emails or other communications, save for certain notifications that are:
(a) necessary elements of the Fund Raiser’s transactions on the Platform (such as confirmations of particular actions the Fund Raiser has taken);
(b) required for legal or security purposes; or
(c) meant to inform the Fund Raiser of changes to Platform policies or FS’ operations or Services,
which cannot be opted out of.
17.14 FS may record and/or monitor any communication(s) (including telephone calls or other electronic communications) between the Fund Raiser and FS. FS may do so in order to resolve queries in the future and/or for the purpose of ensuring security, staff training, and complying with its legal and/or regulatory responsibilities.
17.15 The Platform also collects certain non-personally identifiable information about the Fund Raiser, including but not limited to the Fund Raiser’s domain name, access provider, IP address, and browser language, and browsing or other user unique information or patterns. FS collects the Fund Raiser’s IP address in order to facilitate its administration and improvement of the Platform. The information derived from the Fund Raiser’s IP address can help FS diagnose server problems, report aggregate information, and determine the fastest route from the Fund Raiser’s computer to the Platform.
18. CONFIDENTIALITY & NON-DISCLOSURE
18.1 Without the prior written consent of FS or except as otherwise provided in this Fund Raiser’s Agreement, the Fund Raiser shall not:
(a) distribute or disclose to any third party any of the Confidential Information without FS’ consent;
(b) permit any third party to have access to the Confidential Information;
(c) disclose to a third party any information concerning a possible transaction between the Parties, including the terms, conditions, status, or other facts relating to such transaction, or the fact that the Fund Raiser has received Confidential Information from FS; or
(d) disclose to a third party any details and/or contents of any evaluation developed from FS’ Confidential Information.
18.2 Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed to the Fund Raiser by FS, and all copies thereof which are in the possession of the Fund Raiser, shall be and always remain the property of FS and shall be immediately destroyed upon FS’ written request or upon the termination of this Fund Raiser’s Agreement (whichever is earlier). Further, the Fund Raiser shall upon request from FS provide a written certificate duly signed by the Fund Raiser’s authorised representative, certifying the Fund Raiser’s compliance of its obligations under this Clause.
18.3 No License. Nothing in this Fund Raiser’s Agreement is intended to grant any rights to the Fund Raiser, including but not limited to rights under any patent, trademark, or copyright of FS, nor shall this Fund Raiser’s Agreement grant the Fund Raiser any rights in or to the Confidential Information of FS.
18.4 Remedies. The Fund Raiser agrees that any violation or threatened violation of this Clause 18 may cause irreparable injury to FS and the said injury cannot be compensated by monetary compensation and, in addition to all other rights and remedies that FS may have under law and equity, FS will have a right to seek and obtain appropriate injunctive relief and/or specific performance of the Fund Raiser’s obligations from courts of competent jurisdiction. FS shall be entitled to recover the cost of enforcing this Clause 18, on a full solicitor-client basis, including any attorney's fees incurred.
18.5 Exclusions. The confidentiality obligations under this Clause 18 shall not apply to:
(a) any information which becomes generally known to the public, other than by reason of any wilful or negligent act or omission of the Fund Raiser, or the Fund Raiser’s agents, advisers, directors, officers, employees, or representatives;
(b) any information which is required to be disclosed pursuant to any applicable laws or any requirement of any competent governmental or statutory authority or pursuant to rules or regulations of any relevant regulatory, administrative or supervisory body, provided that prior written notice is given to FS of the contents and timing of such disclosure;
(c) any information which is required to be disclosed pursuant to any legal process issued by any court or tribunal whether in Singapore or in any other applicable jurisdiction;
(d) any information disclosed by the Fund Raiser in confidence to its officers, employees, agents, bankers, financial advisers, consultants and legal or other advisers for a purpose reasonably incidental to this Fund Raiser’s Agreement, provided always that the Fund Raiser obtains an undertaking from such persons to treat FS’ Confidential Information on the same terms as this Clause 18;
(e) any information which was available to the Fund Raiser on a non-confidential basis before disclosure by FS;
(f) information obtained by the Fund Raiser from a third party lawfully in possession of such information and without any breach of such third party's obligations of confidentiality; and
(g) information which is independently developed by the Fund Raiser from information provided or obtained other than pursuant to or in connection with this Fund Raiser’s Agreement, provided such independent development can be proved by documentary evidence.
18.6 Term. The obligations contained in this Clause 18 shall endure, notwithstanding the cessation or termination of this Fund Raiser’s Agreement, without limit in point of time.
19. GENERAL PROVISIONS
(a) All notices, demands or other communications required or permitted to be given or made under this Fund Raiser’s Agreement by FS to the Fund Raiser shall be made in writing and delivered through the internal messaging system of the Platform, by hand, by prepaid registered post, by facsimile transmission, by electronic mail, or through the short messaging system (“SMS”). Save as expressly set out otherwise in this Fund Raiser’s Agreement, any notices or other communication by the Fund Raiser to FS shall be regarded as effective and received by FS only if in writing, sent by prepaid registered mail, to the address of FS.
(b) FS’ address for the purposes of this Fund Raiser’s Agreement is as specified on the Platform, and the address, facsimile number, telephone number and email address of the Fund Raiser are as last registered with FS.
(c) Any notice, demand or communication by FS to the Fund Raiser in accordance with this Clause shall be deemed to have been duly served (if sent through the internal messaging system, by hand, sent by facsimile, by electronic mail, or by SMS) immediately or (if sent via prepaid registered post) on the third Business Day after posting. In proving such service, it shall be sufficient to prove that delivery by hand was made or that the envelope containing such notice or document was properly addressed and posted as a prepaid ordinary mail letter or that the internal message or email confirmation note or facsimile transmission report indicates the transmission was successful or that the SMS was properly addressed and despatched.
(d) Any notice, demand or communication by the Fund Raiser to FS in accordance with this Clause shall be subject to actual receipt by FS.
19.2 No Partnership or Agency: Nothing in this Fund Raiser’s Agreement shall constitute a Party as a partner of the other Party. Nothing in this Fund Raiser’s Agreement is intended to constitute a Party as an agent of the other Party and except as otherwise expressly provided under this Fund Raiser’s Agreement, no Party shall have any power or authority to act in the name or on behalf of or to incur or accept any liability or obligation binding upon the other Party except with the prior written consent of the other Party.
19.3 Further Assurances: Each Party shall execute such other documents, do such acts and things and take such further actions as may be reasonably required or desirable to give full effect to the provisions of this Fund Raiser’s Agreement and the transactions hereunder and each Party shall use its best endeavours to procure that any necessary third party shall execute such documents, do such acts and things and take such further actions as may be reasonably required for giving full effect to the provisions of this Fund Raiser’s Agreement and the transactions hereunder.
19.4 Time of Essence: Any date, time or period mentioned in any provision of this Fund Raiser’s Agreement may be extended by mutual agreement between the Parties but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as aforesaid, time shall be of the essence.
19.5 Remedies: No remedy conferred by any of the provisions of this Fund Raiser’s Agreement is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by a Party hereto shall not constitute a waiver by such Party of the right to pursue any other available remedies. No failure on the part of a Party hereto to exercise, and no delay in exercising any right under this Fund Raiser’s Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right under this Fund Raiser’s Agreement preclude any other or further exercise of any right thereof or of the exercise of any other right.
19.6 Release and Indulgence: Any liability to any Party hereto may in whole or in part be released, compounded or compromised or time or indulgence given by that Party in that Party’s absolute discretion as regards the other Party hereto under such liability without in any way prejudicing or affecting the first Party’s rights against the second Party.
19.7 Assignment: This Fund Raiser’s Agreement shall be binding on and shall enure for the benefit of each of the Parties, their respective successors and any permitted assignee or transferee of some or all of any Party’s rights or obligations under this Agreement. Save as expressly otherwise set out in this Fund Raiser’s Agreement, no Party shall have the right to assign or transfer any of such Party’s rights, undertakings, agreements, duties, liabilities and/or obligations hereunder, without the prior written consent of the other Parties.
19.8 Severance: If any term of this Fund Raiser’s Agreement or the application of any such term is held by a court of competent jurisdiction to be wholly or partly illegal, invalid, or unenforceable, the same shall be rendered void, illegal, or enforceable to that extent and no further and, for the avoidance of doubt, the rest of this Fund Raiser’s Agreement shall continue in full force and effect and the legality, validity and enforceability of the whole of this Fund Raiser’s Agreement in any other jurisdiction shall not be affected.
19.9 Third Party Rights: A person who is not a party to this Fund Raiser’s Agreement shall have no right under the Contracts (Right of Third Parties) Act (Cap. 53B) of Singapore or under any law to enforce any of its terms, save that FS shall be entitled to grant to any Registered Investor the right to enforce any or all of the terms of this Fund Raiser’s Agreement against the Fund Raiser.
19.10 Governing Law and Jurisdiction: This Fund Raiser’s Agreement shall be governed by, and construed in accordance with, the laws of Singapore. Any dispute arising out of or in connection with this Fund Raiser’s Agreement and/or the documents referred to herein, including any question regarding their existence, validity or termination, shall be referred to and finally resolved by the courts of Singapore and the Parties hereby unconditionally and irrevocably submit to the exclusive jurisdiction of the courts of Singapore.