These terms apply to any engagement between Spark CrowdFunding as defined below (“Spark”) and any investee company (the "Investee") seeking to use Spark CrowdFunding in accessing and arranging investments with potential investors who are members of Spark CrowdFunding (the "Investors") through the Spark CrowdFunding platform.
Spark CrowdFunding means Slua Ventures Limited (Company No. 626553) of 27 South William St, Dublin, D02 RP86.
1. INVESTEE'S OBLIGATIONS
1.1. The Investee agrees to:
1.1.1. Complete an application form to participate on the Spark CrowdFunding platform, in terms satisfactory to Spark.
1.1.2. Prepare and procure the delivery of all information to Spark in such form as Spark may require to facilitate the establishment of an Investee specific sub-site within the Website (the Investee's "Pitch") and the crowdfunding raise. Such information shall include:
22.214.171.124. A description of the Investee's investment proposition;
126.96.36.199. The Investee’s business plan, including financial forecasts as appropriate;
188.8.131.52. The latest version of the Investee’s accounts and/or other financial information as appropriate;
184.108.40.206. An outline of any existing or proposed arrangements relating to the Investee's share capital or rights therein that may impact the investment proposition and details of any obligations of the Investee dependent upon realisation of the Investee's shares or similar exit;
220.127.116.11. Details of the equity offered, the types of shares available, the minimum and/or maximum investment required or specific investment requirements for each type of share;
18.104.22.168. The Company's Articles of Association (or constitution) or shareholders' agreement currently (in each case, both existing and any proposed new documents);
1.1.3 Include the following information:
22.214.171.124 The disclaimer provided by Spark;
126.96.36.199 The risk warning provided by Spark on the Pitch and any other promotional materials related to the Pitch; and
188.8.131.52 Such other information as Spark may reasonably require from time to time;
1.1.4. Adopt or modify Articles of Association (or company constitution) in such form as Spark may reasonably require or such other terms of which have been disclosed to Investors and are acceptable to Spark;
1.1.5. Pass, sign and/or adopt any documentation in such form as Spark may from time to time reasonably require to complete the investment round and respond to any queries in this process in a timely manner;
1.1.6. Inform its current shareholders of the proposed transaction in accordance with its current Articles of Association/Company Constitution and/or shareholders' agreement, and ensure that any necessary consents for the Pitch and the proposed transaction are obtained;
1.1.7. Payment processing services for the Investee on the Website being provided by PayPal and the Investee being subject to the PayPal Terms of Service. By agreeing to these Investee Terms, the Investee agrees to be bound to PayPal on the terms of the PayPal Services Agreement, which may be modified by PayPal from time to time. As a condition of Spark enabling payment processing services through PayPal, the Investee agree to provide Spark accurate and complete information about the Investee and its business, and the Investee authorises Spark to share this and transaction information related to the Investees’ use of the payment processing services provided by PayPal. For the avoidance of doubt, the Investee agrees that Spark is not liable for the actions of PayPal or for any chargebacks from investors;
1.1.8. Consider with its board of directors engaging appropriate independent professional advisors to advise the Company on raising investment via the Spark platform. Such engagement shall be a matter for each Investee. Spark shall have no obligation to ensure the Investee receives professional advice nor liability to the Investee or their Investors for any loss if such advice is not taken;
1.1.9. Other than with the prior written consent of Spark, not directly or indirectly, in connection with any securities to be made available to members of Spark through the Website, permit any offer of such securities to persons outside Spark’s membership or permit the communication of any invitation or inducement to engage in investment activity to any such person whether on a third party website or crowdfunding platform or otherwise and the Investee shall indemnify Spark and hold Spark harmless in respect of any loss, liability, cost or expense resulting from the same;
1.1.10. Agree to the use by Spark and license to Spark, all Investee trade names, trademarks, logos and other intellectual property of or licensed to the Investee as reasonably necessary and/or desirable for the purposes of facilitating the offer of securities to be issued by the Investee through the Pitch to members of Spark or for the general purposes of the promotion of Spark or the Website or any mobile application of Spark, and indemnify and hold Spark harmless in respect of any loss, liability, cost or expense resulting from Spark’s use of the same;
1.1.11. Arrange for those persons who place an order to become shareholders of the Investee, in cooperation with the Investee's shareholders, to be issued with shares on receipt of the Subscription Price (as defined below);
1.1.12. Ensure that any marketing materials disseminated by the Investee comply with applicable law and regulation, including displaying risk warnings and, where such marketing materials may be financial promotions, that these are approved in advance by Spark before they are published;
1.1.14. Use best endeavours and devote such time and attention as is reasonably necessary secure a successful fundraise for its Pitch;
1.1.15. Permit a background check provider as selected by Spark to carry out a credit and background check on the Investee and to procure permission from all directors and advisors of the Investee for Spark to carry out automated background checks on them individually;
1.1.16. Send at least one business update per quarter to all of its shareholders following a successful fundraise in addition to any statutory requirements in respect of the circulation of information to its shareholders;
1.1.17. Provide Spark with copies of any business updates or mass communications (in English) with shareholders following a successful fundraise and promptly respond to any requests from Spark about the Investee to enable Spark to update the Investors where necessary. This requirement shall be satisfied by sending a copy of the relevant update or communication in electronic format to email@example.com ;
1.1.18 Complete all necessary statutory and regulatory filings within the applicable time period with any court, governmental authority or authority or body required by any jurisdiction applicable to it in respect of the Pitch including, without limitation, at the Companies Registration Office;
1.1.19 Where the Pitch is, or is planned to be, subject to EIIS, SEIS and/or EIS tax reliefs, provide Spark with the approval documentation from the Irish Revenue Commissioners and/or HMRC and the application from the Investee to the Irish Revenue Commissioners and/or HMRC for such approval. It is the Investee’s responsibility to provide all information required to the Irish Revenue Commissioners and/or HMRC for such approval and Spark does not provide advice on qualification of EIIS, SEIS or EIS. If this clause 1.1.19 applies, the Investee shall use best endeavours to remain a qualifying business for the purposes of EIIS, SEIS and/or EIS for a period of 3 years from the date of the issue of shares.
1.2. The Investee shall not:
1.2.1. While a Pitch on the Website is being prepared or while a Pitch is live and until shares are issued to Investors, list a Pitch on another crowdfunding site or raise any other investment or debt financing, other than with the prior written consent of Spark;
1.2.2. After a Pitch has closed on the Website, represent any funds received by the Company at the close of the Pitch as being part of any subsequent fundraising round, other than with the prior written consent of Spark;
1.2.2. In any way manipulate a Pitch or knowingly allow a pitch to be manipulated, including without limitation adding and subsequently removing investment, adding multiple investments or adding investment which is not intended to be paid up.
1.2.3. Remove, or allow to be removed, any investment, in whole or in part, made by any person connected with the business. In this clause 1.2.3, “connected with” means being:
184.108.40.206. a founder or director of the business;
220.127.116.11. a person named in the “Team” section of the Pitch;
18.104.22.168. a spouse, Civil Partner, parent, child, sibling of any person included in the categories set out at clause 22.214.171.124 and/or 126.96.36.199;
188.8.131.52. a company, partnership, corporate entity or investment vehicle of any person included in the categories set out at clause 184.108.40.206 and/or 220.127.116.11; or
18.104.22.168. an investor investing as part of the Investee’s cornerstone investment.
It is the Investee’s responsibility to ensure all potential investors to which clause would apply are aware of this restriction and, if required by Spark, to pay a deposit which is forfeit if they withdraw their investment and which shall be used to pay any fee payable to Spark under clause 4.5; and
1.2.4. Market or otherwise offer investment opportunities available on the Website to any investors in a country or jurisdiction where such an offer would be unlawful or would contravene local securities laws or regulations unless otherwise agreed with Spark in writing and subject always to the Investee complying with applicable laws and regulations in each territory in which an offer is made. This restriction includes not offering or soliciting shares in the United States unless otherwise agreed with Spark and subject always to the Investee complying with applicable laws and regulations in the United States. The Investee does not hold Spark liable for any liability or regulatory burden arising in any such country or jurisdiction outside of the Republic of Ireland as a result of the Investee’s shares being made available on the Spark platform or any marketing activities of the Investee or Spark in relation to such securities;
1.2.5. Use any Investor Personal Data (as defined in clause 17 below) other than as set out in clause 17 below.
2. CLIENT CATEGORISATION
2.1 The Investee acknowledges that Spark will not supply confirmations of any transactions or orders that it receives and transmits to the Investee, and that the Cooling Off email (as referenced in clause 3.1.3) shall constitute sufficient and adequate reporting of the service of arranging transactions and the receipt and transmission of orders provided by Spark, and hereby consents to the same.
3. SPARK’S OBLIGATIONS
3.1. Subject to clause 3.2 below, Spark shall:-
3.1.1. Use reasonable endeavours to make the Website available to the Investee for the purposes of the Pitch and the raising of funds for which the Pitch is intended;
3.1.2. Use reasonable endeavours to elicit applications from its members for subscriptions for shares in the Investee by means of the Pitch and the Website by communicating the Pitch as a financial promotion to its members;
3.1.3. send a Cooling Off Email in accordance with clause 5.4 to the Investors (unless certain investors have agreed to alternative subscription process with the Investee); and
3.1.4. Liaise with the Investee and any relevant third parties with a view to ensuring the transfer of funds from Investors to the Investee on completion.
3.2. Spark is under no obligation to list the Investee’s Pitch on the Website and may reject a pitch in Spark’s absolute discretion. Spark may also suspend a Pitch at its discretion.
3.3. Spark may recommend the use of a specific professional advisor to the Investee, and in such circumstances the Investee acknowledges that Spark shall have no liability in relation to or involvement in the engagement of such advisor by the Investee, and such relationship will be governed by the terms of engagement between the advisor and the Investee. Spark has no responsibility to ensure the Investee takes professional advice nor liability to the Investee for loss if such advice is not taken.
4. REMUNERATION AND FEES
4.1. Spark will charge a commission of 7% (which is exclusive of VAT) on all monies raised. The commission set out in this clause is subject to clauses 4.11, 15.3 and 15.4 (if applicable).
4.2. All monies raised means the total amount invested in the Company through a Pitch and any directly or indirectly related investment in the Company including all funds included on the Pitch Progress bar and any funds subsequently, and in perpetuity, invested in the Company by an investor introduced by Spark.
4.3. The Investee acknowledges that ancillary charges or fees, including legal fees, may be payable to third parties in connection with the investment, and acknowledges that such charges or fees are disassociated with these terms.
4.4. The Investee agrees to pay all processing fees and charges of the investment, which will include a 0.25% Spark completion fee and any and all charges and fees levied by any third party money transfer provider (see our website for current fees and charges on payments), as engaged in accordance with clause 1.1.7, and agrees to indemnify and hold Spark harmless from any loss, liability, cost or expense resulting from the same. This includes any foreign exchange fee if it is required.
4.5. All charges under this clause 4 shall be paid within 15 days of the date of an invoice from Spark or shall be collected by Spark by electronic transfer from the Investee either deducted from draw down of investment monies or separate electronic transfer from the account connected by the Investee to Spark’s systems under 1.1.7 above.
4.6. If a Pitch reaches 100% of the initial target investment amount on the Pitch page and is cancelled for any reason, including but not limited to withdrawal of investments or breach of these terms by the Investee, Spark will charge the Investee all commissions and fees under this agreement and any fee agreements..
4.7 If a Pitch is unsuccessful or otherwise cancelled and an Investee goes on to raise money from Spark members introduced by Spark, Spark will charge the Investee all commissions and fees under this agreement and any fee agreements.
4.8 If a Pitch is unsuccessful or is cancelled for any reason, unless prior written consent has been given by Spark (in Spark’s absolute discretion), Investee shall not contact Spark members about the investment opportunity or offer or otherwise solicit investment from Spark members, unless such Spark members have independently requested further information from the Investee without solicitation from the Investee, and at all times the Investee shall act in accordance with applicable law and regulation, including in relation to data protection and company law. The Investee shall cease to contact or offer investment opportunities to any Spark members immediately upon request by Spark. The Investee shall notify Spark prior to accepting any investment from Spark members who have been introduced to the Investee by Spark and shall pay Spark the commission on monies raised from such Spark members within 15 days of receipt of an invoice from Spark. Such fee is not payable where the Investee has written evidence (such as an email chain) that the Spark member was already known to the Investee and was not introduced by Spark.
4.9 Additional services, including any marketing agreement, shall be agreed separately by the parties by email (or where required by Spark, in the form specified by Spark, which for marketing services shall set out the type of advertising to be purchased and the cost). Agreement by email shall apply to such additional services and the Investee shall pay any invoice within 15 days for such agreed services and/or marketing services, prior to a Pitch going live on the Website.
4.10. The Investee is liable for all taxes payable under this Agreement and the issue, holding or transfer of shares, including, without limitation, if there is a change in VAT laws and VAT becomes payable on any fees due to Spark.
5. INVESTMENT PROCESS
5.1. The Investee shall make a pitch available for Investors to place revocable orders to subscribe for shares in the Investee through the Pitch for a period (the "Offer Period") ending on the earlier of:
5.1.1. the Investee reaching its target level of investment (including any overfunding) as set out in its Pitch;
5.1.2. the expiry of a 40 day period (beginning with the date on which the Pitch becomes live on the Website) or such shorter or longer period as Spark shall in its absolute discretion agree in writing with the Investee; or
5.1.3. the date upon which the Investee or Spark terminates this Agreement.
5.2. If a Pitch reaches 100% or greater of the target displayed, the Pitch shall be deemed "Successful". By placing a revocable order through the Pitch, the Investee acknowledges that the Investors have indicated an intention to enter into an agreement to invest in accordance with these terms and to transfer the subscription price indicated in that order to the Investee ("Subscription Price"). If the Pitch is Successful, the Investee shall issue shares in the Investee to the Investors subject to the satisfaction of the conditions set out at clause 5.7 and receipt of the Subscription Price into the bank account designated by the Investee, net of any fees set out at clause 4. If the Pitch is not Successful, the agreement between the Investee and the Investor shall not be actioned and the Subscription Price shall not be transferred.
5.3 Spark does not guarantee transfer of funds by Investors to the Investee and Spark is not responsible for payment of the Subscription Price itself.
5.4 The Investee agrees that the contract to invest between the Investee and each Investor formed in accordance with clause 5.5 shall incorporate any warranties given in the legal review document (the “Legal Review”) attached to the Cooling Off Email as detailed below (the “Warranties”), subject to the terms and limitations of such Warranties.
5.5 The Investee will instruct Spark to circulate a Cooling Off Email to each of the Investors by email, with a copy of the Investee's proposed constitutional documents, Legal Review and any other material documents that Spark determines are material to the investment decision. The Cooling Off Email shall set out the relevant response required from the Investor in order to confirm they no longer wish to proceed with their order to invest. This time period to receive a response shall be specified in the email and is determined by Spark in its absolute discretion, but will generally be no shorter than seven days. If Spark receives no response from the Investor within this time period, the Investor will be deemed to have confirmed his/her order and, subject to the completion conditions in clause 5.7, his or her order will become an irrevocable firm order and a binding legal contract will be formed between each and every Investor and the Investee.
5.6. Subject to clause 5.5, the contract to invest between the Investee and each Investor is subject to the following completion conditions:
5.6.1. at least 90% of the initial target investment amount set out on the Pitch shall be received by the Investee from Investors unless Spark determines, in its absolute discretion, that the investment amount confirmed or received is adequate in the circumstances;
5.6.2. the Warranties remaining true and there being no actual or contemplated material change to the Investee or the investment round, either before or after the expiry of the Cooling Off Period set out in clause 5.5 above, and prior to the issue of shares to Investors (such material change to be determined by Spark in its sole discretion);
5.6.3. confirmation of satisfaction of any specific requirements or conditions set out in the Legal Review;
5.6.4. full payment of all fees and commissions due from the Investee to Spark.
5.7. Spark (and not the Investee or Investor) will determine (acting reasonably) whether the conditions set out in clause 5.6 above are satisfied at any time during the completions process prior to the issue of shares to Investors by the Investee. If Spark determines a condition is not satisfied, Spark may in its absolute discretion:
5.7.1 recirculate the Cooling Off Email to include any additional documents or changes required by Spark and which shall include a further cancellation period.
5.7.2. determine that the investment opportunity is cancelled, either before or after the expiry of the deadline set out in the Cooling Off Email. In these circumstances, if the Cooling Off Email has expired, the contract to invest between the Investee and Investor shall not complete and there shall be no legally binding contract between the Investee and Investor.
5.8 If, for whatever reason the Pitch does not proceed to completion, is not Successful, cancelled under clauses 5.6.1 or 5.7.2, or the order not completed for any reason, the Investor's order will be cancelled and will not be transferred to another Pitch or Investee, and no substitute service will be provided. Clause 4.7 shall also apply to Investee. The Investee shall at Spark’s request cancel the investment made by the Investors and return the Subscription Price to the Investors (if any monies have been transferred), and shall liaise with Spark throughout. The Investee consents to Spark releasing such information as is reasonably necessary, to the Investors and to communicate with them to allow cancellation of investments and such return of the Subscription Price.
5.8. The Investee shall liaise with Spark throughout the completions process in good faith and shall promptly respond to Spark for any request.
5.9. Spark may assist the Investee with corporate administration matters relating to the investment process, to prepare the investee company to raise investment via the Spark platform. Spark is not licensed or insured to provide advice to investee companies and such assistance is not legal, financial or tax advice of any kind and should not be considered by Investee as such. If an Investee requires advice and opinions on legal, financial or tax matters relating to their company and Pitch, they should contact an independent professional firm as appropriate.
5.10. In the event that Spark agrees in writing with the Investee to offer a Nominee service on the terms in the schedule (the “Nominee Terms”) for the provision of a nominee (the “Nominee”) in connection with the issue of shares pursuant to the Pitch, any reference in this Agreement to the issue of shares to Investors (or similar expression) shall include the issue of shares to the Nominee to hold on trust for Investors.
5.11. The Investee shall be solely responsible for the provision of any rewards advertised on the pitch and shall not be liable for any delay or failure of the Investee in the provision of such rewards. The Investee shall indemnify Spark in respect of any loss, liability, cost or expense incurred by Spark as a result of the Investee’s failure or delay in providing such rewards.
6. INVESTMENTS / PITCHES
6.1. The Investee acknowledges that, except for Spark’s obligation to approve the Pitch as a financial promotion, it does not rely upon any advice, representations or requirements of Spark in relation to the Pitch, and acknowledges that it is solely responsible for the Pitch complying with all applicable laws and regulations. The Investee further acknowledges that Spark is an independent organisation, and does not act as agent or representative of the Investee or any Investor, unless explicitly authorised in writing separately to this agreement. The Investee acknowledges that it must seek independent advice should it have any legal, financial, regulatory or other concerns about the Pitch.
6.2. The Investee agrees to adhere to all reasonable requirements of the investment process required by Spark from time to time in respect of regulatory and/or legal compliance in relation to the investment process and the Pitch, and shall provide all such information and documentation that Spark requires to ensure such compliance.
6.3. The Investee must ensure that information contained within the Pitch that contains an indication of past performance satisfies the following conditions:
6.3.1. the indication is not the most prominent feature of the communication;
6.3.2. the information includes appropriate performance information which covers the lesser of the period from establishment or the preceding five years and in every case (where possible) that performance information must be based on and show complete 12-month periods;
6.3.3. the reference period and the source of information are clearly stated; and
6.3.4. the information contains a prominent warning that the figures refer to the past and that past performance is not a reliable indicator of future results.
6.4. The Investee must ensure that information within the Pitch, that contains an indication of future performance, satisfies the following conditions:
6.4.1. it is not based on and does not refer to simulated past performance;
6.4.2. it is based on reasonable assumptions supported by objective data; and
6.4.3. it contains a prominent warning that such forecasts are not a reliable indicator of future performance.
6.5. The Investee undertakes, warrants and represents that all text, content, images, .pdfs and any other materials or statements that are included on the Pitch or available via the Pitch including in the forums, downloads (including without limitation in the Legal Review), and updates are true, accurate and not misleading, do not breach any laws or regulations, do not infringe the rights of any third party, including, without limitation, not being defamatory or unjustifiably denigrating of any person; not invading third party rights to privacy and not infringing any third party intellectual property rights and that the same are otherwise a clear and fair representation of the Investee or in the event of an opinion or intention, is made after careful consideration and is fair and made on reasonable grounds.
6.6. The Investee shall ensure that the Pitch contains adequate risk warnings concerning the investment for the Investor, and should not include any emphasis of any benefits to the Investor without a fair and prominent indication of the relevant risks. The Investee acknowledges that the Pitch will be reviewed by Spark members generally and that the Investee should assume that information included in its Pitch will not necessarily be kept confidential. The Investee agrees that it alone shall bear all responsibility for the content of the Pitch, the Warranties and any disclosures in respect of such Warranties, and shall indemnify and hold Spark harmless from any loss, liability, cost or expense resulting directly or indirectly from the same. In addition, the Investee shall ensure that the Pitch contains all information that would be relevant to a potential investor of the Investee, to the extent reasonably practicable, that the Pitch is regularly monitored and kept up to date, and shall ensure that any relevant updates are adequately communicated to current and prospective Investors either through the forum, the Pitch, the Cooling Off Period email or otherwise.
7. WARRANTY, REGULATION AND LIABILITY
7.1. The Investee, as a member of Spark, acknowledges and accepts that the Website includes a forum which is intended as a service to Investees to put them in contact with Investors, and that Spark’s investigation of the Investees and the content of their Pitches have been limited and depends upon the disclosure, feedback and responses of Investee, and accordingly that Spark makes no warranties or representations and assumes no liability in respect of the Investees or the content of their Pitches.
7.2. The Investee warrants, represents and undertakes that:
7.2.1 it shall comply with any terms and conditions associated with the use of the forums on the Website, and acknowledges that Spark will in its absolute discretion have the power to determine whether any posts breach this clause 7.2.1;
7.2.2 all information disclosed to Spark, investors and site users at any time, and including the Warranties, is true, accurate, not misleading and does not infringe any laws, regulations or the rights of any third party, including intellectual property rights;
7.2.3. in advance of a Pitch going live on the Website and throughout the duration of the Pitch and until monies are drawn down from the Investors to Investee, the Investee has disclosed to Spark all debt, fully diluted equity issued and options granted or contemplated, any civil or criminal litigation and threats of litigation and all other material issues impacting upon Investee (and Investee’s directors, employees and contractors) which could reasonably be considered to be a factor in an investment decision by a retail, sophisticated or institutional investor;
7.2.4. any opinion or intention expressed by the Investee to Spark, Investors or on the Pitch, is made after careful consideration and is fair and made on reasonable grounds and any forward looking statement is based upon objective assumptions;
7.2.5. the Investee has the right and power to enter into this Agreement and to offer the investment opportunity on Spark and entering into this Agreement will not contravene, breach or conflict with the Investee’s constitutional documents or any agreement binding on it with a shareholder, lender or otherwise;
7.2.6 no litigation, arbitration or administrative proceedings are taking place, pending, or to the Investee’s knowledge, threatened against it, any of its directors or any of its assets;
7.2.7 prior to the Pitch going live, the Investee has disclosed its fully diluted share capital (as set out in clause 22.214.171.124 above) and that any valuation and equity offered reflects the fully diluted share capital of the Investee and that this will not change until completion of the funding and issue of shares;
7.2.8 the Investee has obtained consent or waiver from any and all existing shareholders who have pre-emption rights for the Investee to carry out this fundraising and proposed share issue;
7.2.9. the Investee is the sole legal and beneficial owner and has good, valid and marketable title to all its assets including but not limited to any intellectual property materially utilised by the Investee;
7.2.10. the Investee is solvent and able to pay all of its debts as they fall due and no director of Investee has any criminal conviction or criminal proceedings against him or her; no director is subject to bankruptcy proceedings or bankrupt; no director has been a director and shareholder of a liquidated company that has gone into liquidation and transferred its assets to a phoenix company of which the director is also a director and shareholder;
7.2.11. the Investee has procured permission from all directors and advisors named on the Pitch that Spark may also carry out automated background checks using a third party provider; and
7.2.12. if the Investee has represented that the Pitch is EIIS and/or SEIS and/or EIS qualifying or pending EIIS and/or SEIS and/or EIS, the Investee and the investment opportunity qualifies for EIIS or SEIS or EIS at the time of the Pitch.
7.3. Spark has no liability for and does not guarantee that the Investee Company will meet its funding target as a result of a Pitch on the Website. Spark has no responsibility for Investors who do not proceed with their investment either before or following receipt of the Cooling Off Period email to Investors. The Investee acknowledges that the purchase of shares is an agreement between Investee and Investors and that Spark is not a party to this Agreement and cannot enforce payment by Investors and is not liable for payment of any monies raised via the Website itself.
7.4. The Investee acknowledges that the approval of the Pitch as a financial promotion by Slua Ventures Limited (t/a Spark CrowdFunding), or the proposed investment in an Investee by any officer or employee of Spark or its affiliates is not an indication of approval of the Pitch generally and does not indicate that Spark advises investment in the Pitch, and the Investee confirms that it shall take no inference from or make any reference to the same.
7.5 Spark makes no warranty to the Investee.
7.6. Spark’s entire liability under this Agreement is limited to the amount of fees received by Spark hereunder. Under no circumstances shall Spark be liable in contract, tort (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise under this Agreement for: (a) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings); or (b) any special, indirect or consequential losses; whether or not such losses were known to the parties at the commencement of this Agreement. Nothing in this Agreement shall limit Spark’s liability for fraud or for any loss which it would be unlawful to exclude.
7.7. Any money or assets collected by Spark (or any subsidiary or holding company of Spark) for the Investee when the Campaign ends shall be released to the Investee’s nominated bank when Spark, at its sole discretion, is satisfied that all legal agreements have been satisfactorily completed and signed. Spark’s client money bank account is a non interest-bearing bank account.
8.1. Subject to clause 8.3, the agreement constituted by these terms between Spark and the Investee shall terminate and cease to be effective forthwith upon the earlier of:
8.1.1. the Investee serving 7 days' written notice on Spark at Spark’s registered office confirming such termination; or
8.2. Spark may terminate this Agreement at any time in the event that
8.2.1. Spark determines that the Investee has breached these Investee terms or the Warranties or completion conditions in the Legal Review;
8.2.2. Spark suspects that the officers of the Investee have been involved in any criminal activities;
8.2.3. the Investee becomes insolvent; or
8.2.4. on the service of 7 days' written notice to the Investee.
8.3. If an Investee has an outstanding or incomplete order for investment from Investors which has not been resolved in accordance with clause 5, the Investee may only terminate this Agreement if it has firstly served written notice by email on Spark and secondly, has withdrawn its Pitch from the Website. If a Cooling Off Period email has been issued, the Investee may only terminate this Agreement if the Cooling Off Period has not yet expired and the Investee has instructed Spark to communicate a cancellation to all potential Investors.
8.4. Once an order has been made firm with an Investor following expiry of the Cooling Off Period, a formal contract has been created between the Investee and the Investor for the issue of shares direct on such terms as are agreed with the relevant Investors and the Investee is bound to complete the share issue, and Spark shall have no further obligations or involvement in the investment or the Investee.
8.5. The following terms shall be continuing notwithstanding termination of this Agreement: clauses 1.1.3, 1.1.10, 3.2, 4, 6, 7, 9, 14, 15, 16, 17 and this clause 8.5
9. COMPLAINTS AND QUERIES
9.1. Should an Investee have any complaints or queries about the services provided by Spark or this Agreement, it should contact Spark on +353 1 44 33 944 or firstname.lastname@example.org .
9.2. Complaints may also be addressed directly to the Financial Services and Pensions Ombudsman of Ireland - contact details as follows: - (01) 567 7000.
9.3. Equity crowdfunding is not a regulated activity in Ireland. Investees should be aware that they are not entitled to compensation from the Central Bank of Ireland in the event that Spark should fail in the conduct of its activities.
9.4. Communications with, to or from Spark shall be in the English language.
10. CANCELLATION AND SUSPENSION
10.1. The Investee hereby acknowledges and consents to the performance of the services by Spark in accordance with this Agreement beginning as soon as this Agreement is made between the Investee and Spark and that other than as set out in this Agreement, Investee has no right of cancellation.
10.2. Spark may suspend or cancel the provision of services under this Agreement, including either not listing a Pitch on the Website or removing or suspending a Pitch from the Website in the event that in Spark’s opinion, the Investee is not or may not be operating in compliance with any applicable laws or regulations; if the Pitch and documentation provided by the Investee means that Spark cannot approve the pitch as a financial promotion; or the Investee is (in the opinion of Spark) in breach of the terms of this Agreement.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
13. ASSIGNMENT AND VARIATION
13.1. An Investee's membership in Spark is non-transferable, and the provisions of this Agreement shall not be assigned, transferred, mortgaged, charged or otherwise encumbranced by an Investee without the written consent of Spark. Spark may assign this Agreement without restriction or consent.
13.2. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). Where there is a conflict between the provisions of this Agreement and an alternative agreement or amendment to this agreement that is in writing and signed by the parties, such alternative written and signed agreement shall prevail.
14.1. Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or (in any other case) its principal place of business or residential address, or sent by email to the email address notified to the other party in accordance with this Agreement. The email address for the service of notices on Spark is email@example.com .
14.2. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by email, at 9.00 am on the next working day after transmission, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
15. ENTIRE AGREEMENT
15.1. This Agreement, together with any terms agreed in any written and signed term sheet entered into by the parties prior to the date of this Agreement (a “Term Sheet”) and (if applicable) the Nominee Terms, sets out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement.
15.2. Save as specified in clause 15.3, if there is any ambiguity or conflict between the provisions of this Agreement and the provisions of any Term Sheet, the provisions of this Agreement shall prevail between the parties.
15.3. If the Investee has entered into a Term Sheet, the commission specified in the Term Sheet will apply in place of the 7% specified in clause 4.1, but clause 4.1 will remain otherwise binding on the parties.
15.4 If the Investee has agreed to Nominee Terms, any fees associated with those Nominee Terms will apply in addition to any other commission, fees and charges under these Investee Terms.
16.1. Save as permitted by clause 16.2, the Investee undertakes that it shall not at any time during the term of this Agreement and a period of two years thereafter disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of Spark.
16.2. The Investee may disclose Spark’s confidential information:
16.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying its obligations under this Agreement. The Investee shall procure that its employees, officers, representatives or advisers to whom it discloses Spark’s confidential information comply with this clause 16; and
16.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3. The Investee shall not use Spark’s confidential information for any purpose other than to perform its obligations under this Agreement.
17. DATA PROTECTION
17.1 In this clause the following definitions apply:
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 2018 or the General Data Protection Regulation (GDPR) as applicable.
Data Subject: an individual who is the subject of Personal Data.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 2018 or the General Data Protection Regulation and relates only to personal data, or any part of such personal data, of which Spark is the Data Controller and in relation to which the Investee is providing services under this Agreement.
Data Processing and Processor: have the meaning set out in the Data Protection Act 2018 or the General Data Protection Regulation as applicable.
Data Processing and Processor: have the meaning set out in the Data Protection Act 2018 or the General Data Protection Regulation as applicable.
17.2 Subject to clause 17.3, 17.4 and 17.5, during a live Pitch and before an Investment completes Spark is the Data Controller and the Investee is the data processor of any Personal Data of a Spark user and the following shall apply during this period prior to completion:
17.2.1 the Investee shall process the Personal Data only to the extent, and in such a manner, as is necessary to respond to requests for information about the Pitch and in accordance with Spark’s instructions from time to time and shall not process the Personal Data for any other purpose.
17.2.2 the Investee shall not add Spark user Personal Data to any general marketing email lists or otherwise; and
17.2.3 the Investee will keep a record of any processing of Personal Data it carries out.
17.3 Upon completion of the Pitch and issue of shares to Investors, in order to enable Investee to administer its share register, manage corporate actions and provide investor updates, Spark shall provide the Investee with a full list of Investors and associated Personal Data, including name, email address, address and at that point, Investor becomes Data Controller of all Personal Data held by it in relation to those Investors and the Investee shall delete all other Personal Data received from Spark users who have not invested. The Investee shall be the data controller in relation to such retained Personal Data and as such is responsible for compliance with all applicable data protection laws including the GDPR.
17.4 If the Pitch is not successful, the Investee shall irretrievably delete all Personal Data received from Spark.
17.5 The Investee shall process the personal data as follows:
17.5.1 only on documented instructions from the Data Controller, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the Investee shall inform the Data Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
17.5.2 persons authorised to process the personal data shall have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
17.5.3 using all security measures required pursuant to Article 32 of the General Data Protection Regulation, including without limitation, that the Personal Data is secure, anonymised were possible and encrypted;
17.5.4 taking into account the nature of the processing, assists the Data Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Data Controller's obligation to respond to requests for exercising the data subject's rights to access data and other rights; and
17.5.5 at Spark’s request, the Investee shall provide to Spark a copy of all Personal Data held by it in the format and on the media reasonably specified by Spark.
17.6 The Investee shall promptly comply with any request from Spark requiring the Investee to amend, transfer or delete the Personal Data.
17.7 If the Investee receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Act 2018 or the General Data Protection Regulation and the data protection principles set out therein, it shall immediately notify Spark and it shall provide Spark with full co-operation and assistance in relation to any such complaint, notice or communication.
17.8 The Investee shall not transfer the Personal Data outside the European Economic Area without the prior written consent of Spark (not to be unreasonably withheld).
17.9 The Investee shall promptly inform Spark if any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Investee will restore such Personal Data at its own expense. The Investee shall notify Spark immediately if it becomes aware of any unauthorised or unlawful processing, loss of, damage to or destruction of the Personal Data.
17.10 Spark is entitled to inspect or appoint representatives to inspect all facilities, equipment, documents and electronic data relating to the processing of Personal Data by the Investee. The Investee shall give access to Investee’s systems and all data for the purpose of audit of Personal Data and compliance with this agreement and Privacy Impact Assessments.
18. GOVERNING LAW AND JURISDICTION
18.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the Republic of Ireland.
18.2. The parties irrevocably agree that the courts of the Republic of Ireland shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SUBMITTING YOUR PITCH AND DETAILS OF INVESTEE COMPANY TO SPARK CROWDFUNDING VIA THE WEBSITE CONFIRMS YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. If you do not understand any of the terms set out in this Agreement or have any queries, please obtain independent advice before proceeding.