DEMO DRAFT - not for actual investment decisions
TokenMarket Subscriber Terms and Conditions
TokenMarket Technologies Limited is Financial Conduct Authority authorised company within the regulatory sandbox program.
Subscriber Terms and Conditions
In these terms and conditions, the following terms shall bear the following meanings unless the context requires otherwise:
"Act" means the UK Companies Act 2006;
"FCA" means the UK's Financial Conduct Authority;
"TokenMarket" means TokenMarket Technologies Limited of 151-153, London W1F 8WE with the company number 11610137 which is a Financial Conduct Authority (the “FCA”) authorised company within the regulatory sandbox program,
"Offeror" means any company, fund or other legal entity which has been accepted by TokenMarket onto the Platform for the purposes of making an Investment Proposal to Subscribers;
"Investment Proposal" means an offer of Securities, debt securities or units in funds("Securities") or such investments in the form of Security Tokens made through the Platform;
TokenMarket Platform means the online website, mobile application or other means of accessing the Investment Proposals, operated by TokenMarket located at www.tokenmarket.net (the "Website") which enable corporate entities (including Offerors) to tokenise their Securities and for holders of these securities to exercise certain rights relating to these securities through such Platform;
"Security Tokens" means a security and a digital token that exists on the Platform having a functionality equivalent to the underlying securities
"Subscriber" means any person who wishes to subscribe for the securities offered in an Investment Proposal made by an Offeror through the Platform.
Operation of these Terms and Conditions
These Subscriber Terms are entered into between TokenMarket and any Subscriber who wishes to make an Investment pursuant to an Investment Proposal made by an Offeror.
These terms apply to all Investments made on the TokenMarket Platform by the Subscriber from time to time. Subscribers should ensure that when making an Investment they have checked against the latest version of these Terms.
Registration of Subscribers.
2.1 Potential Subscribers will not be able to have access to, and the opportunity to participate in Investment Proposal until such time as they have registered on the Platform.
2.1.1. In the course of the registration process the Subscriber represents, warrants and undertakes that:
2.1.1. they are an individual who is at least 18 years old and a resident of the United Kingdom or a country where you may legally receive financial promotions of the nature provided by TokenMarket;
2.1.2. they are legally entitled to invest in the investments offered;
2.1.3. any investment opportunity is only available to them in a country or jurisdiction where it is lawful to access investment offers and to make investments and in circumstances where it is lawful for the Subscriber to receive the offers for investment on www.tokenmarket.net and to make investments and where no local or national restrictions exist applicable to the Subscriber which would make viewing Investment Proposals or investing unlawful. The Subscriber acknowledges that Investment Proposals are not offers to the public in the United States or other countries where such an offer may be unlawful or require the Offeror or TokenMarket to be registered under such countries securities laws or otherwise.
2.3. During the registration process, the Subscriber must provide, and undertakes to provide TokenMarket with:
2.3.1. his/her full name;
2.3.2. his/her current address;
2.2.3. his/her valid and regularly checked email address, which will be verified by means of a verification email as part of the Registration Process. Temporary or otherwise artificial email addresses may result in your account being suspended or terminated, investments cancelled, and forum posts removed; and
2.3.4. any other information requested by TokenMarket; and undertakes to keep the same up to date and to notify TokenMarket of any changes.
2.4. The act of complying with clause 2.3 above, shall constitute express written confirmation from the Subscriber to TokenMarket that the email address he/she has provided to TokenMarket may be used for the purpose of receiving notices or communications from TokenMarket and any Offeror in electronic form and to TokenMarket or any Offeror making information available on a website, and requesting that TokenMarket provide a copy of this confirmation to the Offeror.
2.5. The Subscriber shall comply with such identification and other anti-money laundering requirements that TokenMarket may from time to time require. In particular, TokenMarket may require identification of Subscribers and information about the sources of funds being provided by the Subscriber in Investments TokenMarket considers in its sole discretion to be substantial.
2.6. TokenMarket reserves the right to refuse in its absolute and sole discretion to permit an Subscriber to invest or subscribe for debt securities or Tokens backed by debt securities in an Offeror.
2.7. In registering on the Website, the Subscriber confirms his/her consent to his/her username being publicised as a Subscriber in relation to the Offeror.
2.8. The Subscriber may only invest in an investment for himself in his/her own name and shall ensure that all orders for the investment made through the Website are made exclusively on his/her own behalf.
INCORPORATION OF OTHER TERMS AND ACCESS TO INVESTMENT OPPORTUNITY
3.1. By agreeing to these Subscriber Terms, the Subscriber acknowledges that he/she has also read, understood and agreed to:
3.1.2. the registration form, accessible online at when making a purchase decision;
3.1.4 the risk warnings and disclaimers on all Investment Proposal pages both before and after registration and login on www.tokenmarket.net; and
3.1.5 any legal agreement presented as part of an Investment Proposal (which may be with the Offeror rather than TokenMarket), specific to a particular Investment that an Subscriber applies to invest in, including without limitation, the applicable bond instrument on a mini-bond Investment Proposal page, any applicable prospectus that may be presented to Subscribers or any applicable Investment Agreement that may be presented on a Fund Investment Proposal page.
3.2 In the event of a conflict between these Subscriber Terms and any prospectus or agreement relating to an Investment, the prospectus or the agreement relating the Investment shall take priority.
3.3. In order to use the TokenMarket Platform, the Subscriber acknowledges that they must successfully complete TokenMarket's on-boarding process, including the Subscriber Assessment Questionnaire which is on the TokenMarket Platform where applicable, and the Subscriber agrees that TokenMarket will rely on responses and confirmations given as part of the on-boarding process, which form part of the terms on which TokenMarket provides services to the Subscriber.
3.4 Investments are not offerings to or open to the public and a Subscribers' agreement to these terms and conditions signifies they agree that the offer was not open to the public and that they are only able to invest in an investment product after becoming a member of TokenMarket. Registration and agreement to these terms and conditions allows membership, which TokenMarket may terminate alongside and in accordance with this agreement.
3.5 Notwithstanding anything to the contrary in these Subscriber Terms, where an Investment Proposal states that investments and share subscriptions in an Offeror will be made via a nominee, the subscription for the legal title of the Securities in the Offeror will be made be made by TokenMarket Nominees Limited or such other company as TokenMarket may nominate (the "Nominee") with the beneficial interest being held by the Subscriber through the relevant Tokens. The Subscriber appoints TokenMarket on the terms of the Subscriber Nominee Terms in the Schedule to these Subscriber Terms to administer the holding. Any provisions and terms in these Subscriber Terms impacted by such a nominee structure, including without limitation, references to orders, subscription, Securities, shareholding and shareholder shall be interpreted accordingly to give effect to the nominee structure. In these circumstances, the Nominee shall be the legal owner of Securities in the Offeror and registered on the share register of the Offeror rather than the Subscriber. The Subscriber will hold its interest in the Securities and exercise his rights in respect of the Securities through the Tokens and his contractual relationship with the Nominee.
4.1. As part of TokenMarket's onboarding process Subscribers must classify themselves as either a (i) certified 'high net worth Subscriber', (ii) certified 'sophisticated Subscriber', (iii) self-certified as a 'sophisticated Subscriber' or (iv) certified restricted Subscriber, in each case in accordance with the FCA's Conduct of Business Sourcebook Chapter 4.7.
4.2 By default TokenMarket classifies Subscribers as a retail Subscriber for the purposes of FCA Conduct of Business Rules. If you wish to change your classification, you must immediately notify TokenMarket to request a different classification.
4.2. The Subscriber acknowledges that TokenMarket will not supply confirmations of any orders, and/or resulting transactions, and that the investment confirmation email (as outlined below and referred to as the "Cooling Off Email") shall be sufficient and adequate reporting of the service of arranging the reception and transmission of orders and the arranging of resulting transactions, provided by TokenMarket in accordance with the FCA Handbook, Conduct of Business Rules, Rule 16.1.1, and hereby consents to the same.
5.1. TokenMarket does not charge the Subscriber any remuneration for the services provided to the Subscriber in accordance with these terms.
5.2. TokenMarket reserves the right to impose a fee or charge for its services upon the Subscriber in the future, and will do so by providing advance written notice by email of the proposed charges or fees and any variation of the same, to the Subscriber whereupon the Subscriber may, by notice, terminate this agreement forthwith, if it so wishes, and any outstanding orders for investments in Offerors will be cancelled.
5.3. The Subscriber acknowledges that ancillary charges or fees may be payable to third parties in connection with the Investment and acknowledges that such charges or fees are not associated with these terms. The Subscriber warrants to TokenMarket that it shall pay such fees or charges and shall indemnify TokenMarket against any loss, liability, cost or expense resulting from the same.
6.1. The Subscriber will be entitled to place a revocable order to subscribe for Securities, debt securities or fund units together with the relevant Tokens in an Offeror in any Investment Proposal on the Website for a period (the "Offer Period") ending on the date specified by the Offeror on the Investment Proposal which may be updated from time to time and TokenMarket reserves the right to end Investment Proposals early or extend the Offer Period in its absolute discretion. The subscription agreement for the investment is between the Subscriber and Offeror such that the offer from the Subscriber is to the Offeror and not to TokenMarket. The Offeror may accept or reject any order up until expiry of the period set out in the email as set out in clause 6.3 below. TokenMarket is not a party to the agreement to invest between the Subscriber and Offeror and TokenMarket's service is limited to arranging the Investment.
6.2. The Subscriber shall put in place payment arrangements to ensure that the Subscription Price is paid in accordance with clause 6.5 below. This may require the Subscriber to agree to a payment service provider's terms and conditions or otherwise provide satisfactory evidence of payment to TokenMarket. It is the Subscriber's responsibility to ensure that any such payment arrangements are established and maintained and that monies are transferred in accordance with clause 6.5 below.
6.3. If an Investment Proposal is successful, the Offeror will instruct TokenMarket to circulate a copy of the Offeror's proposed Articles of Association, the terms of the related Tokens and any Securities, bond instrument or fund documentation underlying each Token to each Subscriber by email, and to request that that each Subscriber inform TokenMarket by email within the time period specified in the email if they no longer wish to proceed with the Investment. If TokenMarket receives no response from the Subscriber within the specified time period, the Subscriber will be deemed to have confirmed his/her order and the Offeror will accept his/her order and such order will become a legally binding contract to invest between the Offeror and the Subscriber upon expiry of the time period set out in the email, with completion of the investment conditional upon the Offeror receiving payment from the Subscriber and subject to the completion conditions set out in clause 6.5 below. The Subscriber agrees that the contract to invest between the Offeror and Subscriber formed in accordance with this clause shall incorporate any warranties given in the White Paperdocument (the "White Paper") attached to the email sent by TokenMarket to each Subscriber pursuant to this clause (the "Warranties"), subject to the terms and limitations of such Warranties as set out in the White Paper.
6.4. If for any reason the confirmation email is not received by an Subscriber or an Subscriber's response to the confirmation email is not received by TokenMarket (whether this is known or notified to TokenMarket or not), otherwise than as a result of fraud or gross negligence by TokenMarket, TokenMarket shall not be liable to the Subscriber or the Offeror for any losses, claims or damages suffered by the Subscriber, and TokenMarket shall be entitled to proceed on the assumption that the Subscriber has received the email and wishes to proceed with the Investment.
6.5. Subject to clause 6.6, the contract to invest between the Subscriber and Offeror is subject to the following completion conditions:
6.5.1 at least 90% of the initial target investment amount set out on the Investment Proposal shall be received by the Offeror from Subscribers unless TokenMarket determines, in its absolute discretion, that the investment amount confirmed or received is adequate in the circumstances;
6.5.2 the Warranties being true and there being no actual or contemplated material change to the Offeror or the investment round, either before or after the expiry of the email set out in clause 6.3 above and prior to the issue of Securities to Subscribers (whether change is material to be determined by TokenMarket in its sole discretion);
6.5.3 confirmation of satisfaction of any specific conditions set out in the White Paper; and
6.5.4 payment of all fees and commissions due from Offeror to TokenMarket.
6.6 TokenMarket (and not the Offeror or Subscriber) has absolute discretion to determine whether the conditions set out in clause 6.5 above are satisfied at any time during the completions process prior to the issue of Securities to Subscriber by Offeror. If TokenMarket determines a condition is not satisfied, TokenMarket may in its absolute discretion:
6.6.1 recirculate the email to Subscribers as set out in clause 6.3 above, to include, as required by TokenMarket, the Articles of Association of the Offeror alongside a disclosure statement detailing the failed condition. This email may also request that each Subscriber inform TokenMarket by email within the time specified in the email if they no longer wish to proceed with the Investment. If TokenMarket receives no response from the Subscriber within the stated time period, the Subscriber will be deemed to have confirmed his order in the same manner as clause 6.3 and subject to clauses 6.5 and 6.6; or
6.6.2: determine that the investment opportunity is cancelled, either before or after the expiry of the time period in the confirmation email. In these circumstances, if the time period set out in the confirmation email to Subscribers has expired, the contract to invest between the Offeror and Subscriber shall not complete and there shall be no legally binding contract between the Offeror and Subscriber. Clause 6.8 below shall apply in these circumstances.
6.7. If a Investment Proposal is successful, when the Subscriber places an order to subscribe for Securities in an Offeror, and subject to non-revocation at expiry of the confirmation email, an agreement shall then subsist between the Subscriber and the Offeror, or a third party on behalf of the Offeror, to transfer the subscription price of the relevant Investment (the "Subscription Price") to the Offeror. Securities, debt securities or units in the Offeror will be issued to the Subscriber by the Offeror and the Subscription Price will be transferred to the account of the Offeror following the end of the Offer Period. If the Investment Proposal is not successful or any completion condition set out in clause 6.3 or6.5 is not satisfied, then no such agreement between the Subscriber and the Offeror shall arise.
6.8. If the Investment Proposal is unsuccessful or the order not completed for any reason, the Subscriber's order will not be transferred to another Investment Proposal or Offeror, and no substitute service will be provided. The Subscriber confirms that should an Offeror not ultimately attain the stated desired target level of investment as set out in its Investment Proposal, through withdrawals after the expiry of the Offer Period, or failure by other Subscribers to transfer the Subscription Price to the Offeror, neither the Offeror nor TokenMarket is required to inform the Subscriber of this failure, and the Subscriber may still be required to purchase the Securities he/she ordered, provided that the conditions in clause 6.3 and 6.5 are met. If the conditions in clause 6.3 or 6.5 are not satisfied for any reason, the agreement for investment between the Subscriber and Offeror will not complete and TokenMarket will use its reasonable endeavours to arrange for the Offeror to cancel the Investment made by the Subscriber and, if payment has already been made, require the Offeror to return the Subscription Price to the Subscriber. The Subscriber consents to TokenMarket releasing such information as is reasonably necessary, to the Offeror to allow such return of the Subscription Price, and the Subscriber undertakes to co-operate with TokenMarket and the Offeror, including in relation to any transaction fees or charges, to facilitate the cancellation of the Investment and the return of the Subscription Price.
6.9. The terms relating to the provision of any rewards for investment advertised on the Investment Proposal shall constitute part of the agreement formed between the Subscriber and the Offeror pursuant to clause 6.7. TokenMarket shall not be responsible for the provision of such rewards and shall not be liable for any delay or failure of the Offeror in the provision of such rewards.
6.10. The Warranties are made by the Offeror to the Subscriber. TokenMarket accepts no responsibility for enforcing any Warranties. Any Subscriber who seeks to enforce any of the Warranties shall bear all costs incurred in connection with such enforcement.
6.11. At any time prior to the expiry of the period specified out in the email sent by TokenMarket pursuant to clause 6.3 above, TokenMarket may cancel any order of Investment made by the Subscriber that TokenMarket deems, in its absolute discretion, to be malicious or otherwise detrimental to Offeror or TokenMarket. This includes, without limitation, Investments placed for the purpose of disrupting or causing the closure of the Offeror's Investment Proposal where the Subscriber has no intention of paying the Subscription Price. The Subscriber shall indemnify TokenMarket for any loss, liability, cost or expense incurred by TokenMarket in connection with the removal of an Investment pursuant to this clause.
6.12. In the event that the Subscriber is connected with the Offeror, he/she shall be deemed to have waived any right he/she may have to cancel his/her Investment pursuant to clause 6.3. In this clause 6.12, "connected with" means being:
6.12.1. a director of the Offeror;
6.12.2. a person named in the "Team" section of the Offeror's Investment Proposal; or
6.12.3. a spouse, Civil Partner, parent, child, sibling of any person included in the categories set out at clauses 6.12.1 and/or 6.12.2.
INVESTMENTS AND NEXT OF KIN
7.1. Subscribers are encouraged to ensure that arrangements are put in place for their next of kin to be informed of their order and the TokenMarket process, and that instructions are provided to enable the Subscriber's order to be withdrawn before it is converted to an irrevocable order on the occurrence of the Subscriber's death, insolvency or incapacity. TokenMarket accepts no responsibility or liability for orders not being withdrawn before being converted to a firm order through the failure of the Subscriber to put in place such an arrangement, or the failure of the next of kin to communicate a withdrawal.
7.2. Subscribers, or in accordance with clause 7.4, their next of kin, are entitled to withdraw their order at any time prior to it becoming a firm order upon the expiry of the confirmation email as set out in clause 6.3 above.
OFFEROR ARTICLES, BOND INSTRUMENT OR FUND DOCUMENTATION
8.1. The Subscriber acknowledges that, as a consequence of him/her becoming a shareholder of an Offeror, he/she shall be subject to the provisions of the Offeror's Articles of Association (which constitute an agreement between all of the Offeror's shareholders), bond instrument or fund investment agreement, which Articles of Association, bond instrument or fund investment agreement will include certain restrictions on the Securities, bonds or fund units issued and certain rights and obligations will attach to such Securities, bonds or fund units and fund investments.
8.2. The Articles of Association will be in the form notified to the Subscriber by TokenMarket in the confirmation email referred to in clause 6.3 above and/or as set out on the Investment Proposal and may be subject to other documentation or disclosures.
8.3. The Subscriber acknowledges that, as a consequence of him/her becoming a bondholder of an Offeror, he/she shall be subject to the provisions of the Bond Instrument or other debt instrument and associated terms and conditions of the particular debt security (which constitute an agreement between each bondholder and the relevant Offeror) which will include certain restrictions on the debt securities issued and certain rights and obligations will attach to such debt securities.
REGULATION AND LIABILITY
9.1. The Subscriber acknowledges that TokenMarket's affiliates, and/or the proprietors, officers or employees of TokenMarket and/or such affiliates may consider expressing interest or subscribing for Securities in an Offeror. If the Subscriber becomes aware of this, he/she agrees not to rely upon the same in making a decision whether to invest in an Offeror, and confirms that any decision by him/her to invest in an Offeror is not based upon any representation, information, action, omission or otherwise of TokenMarket, its subsidiaries or affiliates or the proprietors or employees of TokenMarket, its subsidiaries or its affiliates.
9.2. The Subscriber acknowledges that TokenMarket approves each Investment Proposal as a financial promotion but does not provide advice or any form of recommendation regarding the suitability or quality of the Investment. The Subscriber acknowledges that the approval of the Investment Proposal as a financial promotion by TokenMarket, or the investment in an Offeror by any person referred to in clause 7.1 is not an indication of approval of the Investment Proposal generally, and the Subscriber confirms that it shall take no inference from or make any reference to the same.
9.3. The Subscriber acknowledges and accepts that the Website includes a forum which is an integral part of an Offeror's Investment Proposal which is intended as a service to Offerors to put them in contact with Subscribers, and thus that TokenMarket's investigation of the Offerors and the content of their Investment Proposals is limited, and accordingly TokenMarket makes no warranty or representation and assumes no liability in respect of the Offerors or the content of their Investment Proposals. The Subscriber must make his/her own assessment of the viability, accuracy and prospects of the Offerors, their Investment Proposals, and any relevant investment propositions and should consult his/her professional advisers should he/she require any assistance in making such an assessment or should the Subscriber require any services whatsoever in connection with TokenMarket. In particular, the attention of the Subscribers is drawn to the disclaimer, risk warning and regulatory notice on each Investment Proposal.
9.4. The Subscriber warrants, represents and undertakes to TokenMarket that (i) the Subscriber has categorised himself or herself correctly under clause 4.1 above; (ii) shall comply with any terms and conditions associated with the use of the forums on the Website, and in particular undertakes not to post any illegal, defamatory or inappropriate material or advice to invest and acknowledges that TokenMarket will in its absolute discretion have the power to determine whether posts by Subscribers breach this clause 9.4 or are otherwise inappropriate and may be removed by TokenMarket.
9.5. The Subscriber acknowledges that TokenMarket does not provide the Subscriber with any advice or recommendations in relation to investments. Nevertheless, it is typically considered prudent for Subscribers to consider spreading their risk over multiple investments and TokenMarket encourages this approach.
9.6. The Subscriber acknowledges that in approving the Investment Proposal as a financial promotion, TokenMarket has concluded that the Investment Proposal, taken as a whole in the context of the above, is fair, clear and not misleading. The Subscriber acknowledges that TokenMarket has reviewed any factual statements included within the Investment Proposal and obtained evidence of their accuracy from the Offeror. However, the Subscriber's attention is drawn to the fact that the evidence is obtained from the Offeror itself and has not been audited by TokenMarket, which means that it may contain inaccuracies, be incomplete or be a forgery.
9.7. The Subscriber acknowledges that TokenMarket has checked that aspirational statements contained within the Investment Proposal are phrased appropriately in light of their speculative nature. However, the Subscriber acknowledges that the Offeror is likely to be a start-up company and as such may have high ambitions which may be unachievable and exaggerated. The Subscriber acknowledges that TokenMarket may approve statements that convey those ambitions even where it does not believe or does not have a view on whether it is likely, that they will be fully realised and the Subscriber acknowledges that TokenMarket encourages Subscribers to consider the information provided in the context it is being provided.
9.8 The Subscriber acknowledges that TokenMarket makes no representation, warranty or undertaking relating to any claims made by Offerors, including, without limitation, that the Offeror and the Investment will qualify for or be subject to any tax benefits such as EIS and SEIS or that these tax benefits are pending approval of, or may be revoked by, HMRC. Subscriber acknowledges and agrees that tax benefits may change or be disqualified and shall not hold TokenMarket liable for any loss arising as a result of a tax benefit (including, without limitation EIS or SEIS) not applying to an Investment, including without limitation in circumstances where tax has been 'clawed back' from a Subscriber by HMRC.
9.9 The Subscriber acknowledges that tax treatment depends on the individual circumstances of each Subscriber and may be subject to change in future.
9.10 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their agents or employees nor for fraud by or on behalf of either party. Nothing in this Agreement shall limit any liability to the extent that liability may not be excluded or limited by any applicable law or regulation.
9.11 With the exception of clause 9.10 above, TokenMarket's liability (which shall include TokenMarket's affiliate or group companies, including TokenMarket Ltd; and directors, officers and employees of TokenMarket Ltd, TokenMarket Capital Ltd and TokenMarket Nominees Ltd and their directors and officers) in contract, tort, negligence, pre-contract or other representations or otherwise arising out of this agreement or the performance of its obligations under this agreement shall be limited in aggregate to the lesser of the total amount invested in the Investment Proposal by Subscriber on www.tokenmarket.net up to the date of the event leading to the claim; or £1,000.
9.12 TokenMarket shall not 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.
9.13 Where an Subscriber invests via a nominee, the nominee company is responsible for the administration of the nominee and trust agreement in accordance with the relevant trust agreement and (save where the nominee is TokenMarket Nominees Limited) neither TokenMarket, nor any subsidiary or holding company of TokenMarket, or any other subsidiary of TokenMarket's holding company (other than a nominee company where this forms part of TokenMarket's group) is a party or trustee to the nominee agreement or otherwise responsible for the Subscriber's beneficial shareholding via the nominee company or otherwise and is not liable for the actions or inactions of the nominee company or for loss or damage of any nature arising from Subscribers investment via a nominee.
9.14 Any money or assets held by TokenMarket (or any subsidiary or holding company of TokenMarket) for the Subscriber shall be held in accordance with all applicable rules set out in the FCA Handbook. TokenMarket's client money bank account is a non-interest-bearing bank account.
10.1. Subject to clause 10.2, the Subscriber may terminate this agreement on 7 days' written notice to TokenMarket.
10.2. If an Subscriber has an outstanding or incomplete order for investment in any Offeror which has not been resolved in accordance with Clause 6.1, the Subscriber may only terminate this Agreement if they have (i) served written notice by email on TokenMarket; and (ii), has withdrawn his/her order from the ongoing Investment Proposal either via the Investment Proposal, or by responding to the confirmation email confirming his/her withdrawal.
10.3. Once an order has been made firm with an Offeror in accordance with this agreement, the Subscriber has entered into a contract with the Offeror direct on such terms as are agreed with the Offeror, and TokenMarket shall have no further obligations or involvement in the Investment unless otherwise notified to Subscriber.
10.4. TokenMarket may terminate this agreement at any time in the event that:
10.4.1. the Subscriber breaches these Subscriber Terms; or
10.4.2. TokenMarket suspects that the Subscriber has been involved in any criminal or otherwise improper activities,
and the Subscriber's use of the TokenMarket platform will be terminated.
10.5. If TokenMarket terminates this agreement in accordance with clause 10.4 whilst the Subscriber has placed an order that has not been completed by the issue of Securities in the relevant Offeror, TokenMarket reserves the right to inform the Offeror of the termination and take such steps as are necessary to ensure that the Subscriber's order is not completed.
10.6 Clauses 6,7,8 and 9 shall survive termination of this agreement and if an Subscriber has made an application to invest or has invested in an Offeror through TokenMarket then any clause in this agreement that is required in order to put such investment into effect shall also survive.
EARLY DRAWDOWN OF FUNDS
11.1. This clause applies where the Subscriber has entered into a binding subscription agreement with the Offeror and transferred the applicable Subscription Price ("Pre-Committed Investment") to the Offeror prior to the email referred to in clause 6.3 being sent.
11.2. Where this clause applies, the Subscriber:
11.2.1 agrees that the Offeror may draw down and spend the Pre-Committed Investment at any time after the receipt of such Pre-Committed Investment and that there is no guarantee that any further funds will be raised via the Investment Proposal;
11.2.2. waives any right he or she may have to cancel the Pre-Committed Investment in accordance with clause 6 or otherwise;
11.2.3. agrees that completion of the Pre-Committed Investment shall not be subject to the conditions set out in clause 6.5 and that Subscriber may be subject to additional risks of investment which are outside of TokenMarket's control;
11.2.4. agrees that, in the event that the Investment Proposal is cancelled for any reason, the Offeror shall be solely responsible for issuing the Securities in respect of the Pre-Committed Investment; and
11.2.5. acknowledges that the delay between receipt of the Pre-Committed Investment and the issue of Securities in respect of such Pre-Committed Investment may prejudice any tax relief to which the Subscriber may otherwise be entitled and agrees to take professional tax advice as required.
COMPLAINTS AND QUERIES
12.1. Should a Subscriber have any complaints or queries about the services provided by TokenMarket or this agreement, they should contact TokenMarket on [ firstname.lastname@example.org] or by writing to TokenMarket at 151-153 Wardour Street, London W!F 8WE.
12.2. Complaints may subsequently be addressed directly to the UK Financial Ombudsman Service - contact details as follows:- Tel: 0300 123 9 123; or Tel: 0800 023 4567 FREE.
12.3. Subscribers are treated as customers of TokenMarket and may therefore have the potential to be compensated out of the Financial Services Compensation Scheme in the event that TokenMarket should fail in the conduct of its FCA regulated activities. However, Subscribers will not be able to claim under the Financial Services Compensation Scheme merely because a TokenMarket Offeror company fails or does not perform to expectations.
12.4. Communications with, to or from TokenMarket shall be in the English language.
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.
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.
ASSIGNMENT AND VARIATION
15.1. The provisions of this agreement shall not be assigned, transferred, mortgaged, charged or otherwise encumbered by the Subscriber without the written consent of TokenMarket. TokenMarket may assign this agreement without restriction subject to compliance with applicable law and regulation.
15.2. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). If any clause is deemed invalid or unenforceable, it shall not impact upon the remainder of this agreement which shall remain in force.
16.1. 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 TokenMarket is adrian@TokenMarket.net.
16.2. 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.
GOVERNING LAW AND JURISDICTION
17.1. 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 England and Wales.
17.2. The parties irrevocably agree that the courts of England and Wales shall have 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).
SUBSCRIBER NOMINEE TERMS
AGREEMENT FOR APPOINTMENT OF TOKENMARKET TECHNOLOGIES LIMITED AS SUBSCRIBER REPRESENTATIVE FOR NOMINEE DEALS
Agreement forms part of Subscriber Terms
1.1. This Agreement applies between the Subscriber and TokenMarket in relation to any investment in a Company involving TokenMarket Nominees Ltd or such other company as TokenMarket may nominate(the "Nominee") and forms part of the Subscriber Terms.
1.2 In this Agreement, the "Company" means an Offeror; "Securities" means any security (including any electronic token or other form of digitised asset) issued by the Company and held by the Nominee on behalf of the Subscribers from time to time; and "Subscribers" means the Subscribers in any Company from time to time in accordance with the Subscriber Terms (and "Subscriber" shall be construed accordingly).
1.3 Expressions defined in the Subscriber Terms have the same meaning in this Agreement unless expressly provided otherwise.
2.1 Each Subscriber appoints TokenMarket with full power and authority to perform the actions as set out in this Agreement and the Subscriber acknowledges and agrees that it may not instruct the Nominee directly.
Execution of agreements, taking all action, notifications and voting**
3.1 Subject to clause 3.3, the Subscriber agrees that TokenMarket may instruct the Nominee on his or her behalf to execute such agreements and documents as TokenMarket deems, in its absolute discretion, to be in the best interests of the Subscribers, including but not limited to a shareholders' agreement between shareholders in the Company (a "Company Document") and to instruct the Nominee to:
3.1.1 take and refrain from taking any actions;
3.1.2 consent to or withhold its consent to any matter; or
3.1.3 waive its rights; under any such Company Document and, whether or not the Nominee enters into any Company Document, to take any and all other action relating to the Company and Securities which TokenMarket determines is in the best interests of Subscribers as a whole, unless expressly provided otherwise in this Agreement.
3.2 Notwithstanding the provisions of clause 3.1, TokenMarket shall not be required or obligated to enforce any term of a Company Document or take any other action, save where clause 3(c) applies.
3.3.1 this Agreement expressly requires it; or
3.3.2 if TokenMarket determines (in its absolute discretion) that any action should be determined by the Subscribers, TokenMarket shall, subject to clause 3.4, use reasonable endeavours to notify the Subscribers ("Notification") of the matter which requires a decision to be made by the Subscribers. TokenMarket shall action any matter which the subject of a Notification in accordance with the views of the majority of those Subscribers is (measured by the numbers of Securities owned beneficially in the relevant Company) that respond to TokenMarket in respect of the relevant Notification within the period specified in the Notification. Any response from an Subscriber received after the deadline specified in the Notification shall be invalid.
3.4 There may be circumstances where TokenMarket is not appropriately notified by the Company, or receives insufficient information from the Company, or is otherwise prevented by applicable law to make a Notification under clause 3(c) and the Subscriber acknowledges and agrees that neither TokenMarket nor its Nominee shall be liable for any such failure to make a Notification.
3.5 TokenMarket may instruct the Nominee to vote on any resolution on which the Nominee is entitled to vote or give or withhold its consent to any matter where the Nominee's consent is required, whether following a Notification or otherwise, except where expressly provided otherwise in this Agreement.
3.6 TokenMarket shall not be obliged to follow the procedure set out in clause 3(c) where it has been notified by the Company that the resolution has already been passed or a decision binding on the Nominee has already been made on the basis of the agreement or disagreement (as the case may be) of the requisite number of the other shareholders of the Company.
3.7 In the event that the Nominee is obliged to take or refrain from taking any action by any provision of the Company's articles of association (or equivalent constitutional documents) ("Articles") or a Corporate Document, TokenMarket may instruct the Nominee to take or refrain from taking that action (as the case may be) without requiring any further authority from Subscribers.
3.8 Neither TokenMarket nor the Nominee shall provide the Subscriber with legal, financial, tax or investment advice in respect of the contents of any Notification or any other matter.
Subscriber back-to-back obligations
4.1 If the Nominee is required to enter into any agreement on behalf of the Subscriber, whether a Corporate Document or otherwise, the Subscriber agrees to "back to back" all obligations of the Nominee so that the Subscriber owes the Nominee the same obligations that the Nominee owes under such agreement.
4.2 TokenMarket shall use reasonable endeavours to send any agreement referred to in clause 4(a) to relevant Subscribers at least 3 Business Days prior to the proposed date of entry into the agreement.
4.3 The Subscriber shall indemnify and keep indemnified TokenMarket, the Nominee and their respective directors, officers, employees, agents and shareholders from and against all claims, actions, proceedings, demands, damages, liabilities, losses, settlements, judgements, costs and expenses (including reasonable legal expenses) which arise out of, directly or indirectly, arising out of or in connection with TokenMarket's entering into any agreement on behalf of an Subscriber under clause 4(a).
4.4 Clause 4(d) shall not apply to the extent that a claim under it results from TokenMarket's negligence or wilful misconduct.
Dividends and other monies
5.1 TokenMarket shall account to the Subscriber for all dividends and other monies which may be paid by a Company from time to time in respect of its Securities, providing the Subscriber's entitlement to those monies is greater than £5.00 and the cost of payment does not outweigh the Subscriber's entitlement.
5.2 On request by TokenMarket, the Subscriber shall notify TokenMarket of the bank account to which any payments to be made pursuant to this clause 6 shall be made
5.3 TokenMarket shall hold any dividends or other monies due to an Subscriber in accordance with clause 9.14 of the Subscriber Terms.
6.1. Except where clause 7(b) applies, on any transfer or further issue of securities in the Company in respect of which the Nominee holds pre-emption rights and these rights are not waived by an action of the Company, TokenMarket shall use reasonable endeavours to procure that the Nominee's pro-rata entitlement to such Securities ("Nominee's Entitlement") is made available to the Subscribers. This may be by way of a private Investment Proposal on the TokenMarket platform ("Pre-Emption Investment Proposal"), in which case the following terms shall apply:
6.1.1 TokenMarket shall use reasonable endeavours to notify the Subscribers prior to the opening of the Pre-Emption Investment Proposal;
6.1.2 TokenMarket reserves the right to limit participation in the Pre-Emption Investment Proposal to the individual entitlement of each participating Subscriber based on their existing holdings in the Company;
6.1.3 any further Securities subscribed for or purchased by the Subscribers via the Pre-Emption Investment Proposal shall be held by the Nominee as trustee on behalf of the Subscribers and this Agreement will apply to those Securities; and
6.1.4 TokenMarket may in its absolute discretion allocate any of the Nominee's Entitlement which is not taken up by the Subscribers to any person on the same terms as were offered to Subscribers.
6.2 TokenMarket may instruct the Nominee to waive pre-emption rights in respect of any transfer or further issue of securities in the Company, where TokenMarket determines, in its absolute discretion, that the waiver of pre-emption rights is in the best interests of Subscribers (including but not limited to where the offer is so small that the cost of administration of the offer to Subscribers is disproportionate or where a new material transaction is contingent on such waiver).
Transfer of Securities
7.1 In the event that the Nominee is obliged by law or a provision of the Articles to transfer the Securities, or if TokenMarket determines in accordance with clause 3 that the transfer of Securities is in the best interests of Subscribers:
7.1.1 TokenMarket shall notify the Subscriber as soon as reasonably practicable;
7.1.2 The making of any notification made under clause 8(a)(i) by TokenMarket shall be considered to be an instruction to TokenMarket from the Subscriber to take the relevant action under clause 8(a)(iii) as may be necessary to affect the transfer of the relevant Securities on behalf of the Subscriber; and
7.1.2 TokenMarket may instruct the Nominee to transfer the legal title and procure that the Subscriber transfers the beneficial title to the Securities and sign all documents and take all actions necessary to affect such transfer.
7.2 In the event that TokenMarket is unable to determine that a transfer of Securities is in the best interest of Subscribers:
7.2.1 TokenMarket shall notify the Subscriber as soon as is reasonably practicable with a copy of the contract for sale (if available);
7.2.2 unless otherwise set out in the Notification, TokenMarket shall make such decision in accordance with the views of the majority of those Subscribers (measured by the numbers of Securities owned beneficially) that respond to TokenMarket in respect of the relevant Notification within the period specified in the Notification; and
7.2.3 if the result of the Notification is positive, TokenMarket may then instruct the Nominee to transfer the legal title and procure that the Subscriber transfers the beneficial title to the Securities and sign all documents and take all actions necessary to effect such transfer.
7.3 To the extent permitted by the Articles, the Subscriber may transfer the beneficial title to the Securities, provided that:
7.3.1 the Subscriber notifies TokenMarket of its intention to transfer the beneficial title to the Securities as soon as reasonably practicable;
7.3.2 the Subscriber provides such information about the transfer and the transferee as TokenMarket may reasonably request;
7.3.3 the transferee satisfies TokenMarket's anti-money laundering checks; and
7.3.4 the transferee is, or immediately on the completion of the transfer becomes, a member of the TokenMarket platform. Any purported transfer of the beneficial title to the Securities by the Subscriber that is not in accordance with this clause 8(c) shall be void and shall not be recognised by TokenMarket, the Nominee or the Company.
9.1 The Nominee shall hold the legal title to the Securities on behalf of the Subscriber and in consideration of this, the Subscriber shall:
9.1.1. comply with the provisions of this Agreement, the Articles, any Corporate Document, and any agreement of the Company as are in effect whilst the Subscriber holds the beneficial interest in the Securities;
9.1.2. not attempt to transfer, or purport to transfer the legal title to the Securities whilst this Agreement is in force, or represent that the Subscriber holds the legal title to the Securities in any way;
9.1.3. not attempt to transfer the beneficial title to the Securities in any way other than in accordance with the provisions of this Agreement; and
9.1.4. not allow a Security Interest to be created or allow a Security Interest to exist over the Securities, including without limitation, conversion rights and rights of pre-emption, on, over or affecting the Securities and not to enter into an agreement or arrangement to give or create any such Security Interest. For the purposes of this clause 9(a)(iv), a "Security Interest" shall mean any option, mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, security, interest, retention of title or other encumbrance of any kind securing, or any right conferring, a priority of payment in respect of any obligation of any person or a contractual right to Securities or to any asset or liability.
9.2 The Subscriber represents and warrants on an ongoing basis while the Securities are held by the Nominee that each of the obligations in clause 9(a) above is true at all times.
9.3 The Subscriber shall indemnify and keep indemnified TokenMarket, the Nominee and their respective / its directors, officers, employees, agents and shareholders from and against all claims, actions, proceedings, demands, damages, liabilities, losses, settlements, judgements, costs and expenses (including reasonable legal expenses) which arise out of, directly or indirectly, any act or omission of the Subscriber, any breach of clause 9(a) or any breach of warranty by the Subscriber in clause 9(b).
10.1 Subject to clause 10(b) of this Agreement, any notice (including, without limitation, any Notification or response to such Notification) shall be given to the parties by email to the following addresses:
10.1.1 TokenMarket: email@example.com
10.1.2 Subscriber: the email address most recently notified by the Subscriber to TokenMarket
10.2 TokenMarket may from time to time decide that notices may be given by other means (including, without limitation, via an internet-based platform), in which case TokenMarket shall notify the Subscriber of such decision by email.
10.3 TokenMarket may determine in its absolute discretion whether or not to circulate a notification it has received from a Company to Subscribers.
Fees and expenses
11.1. TokenMarket may from time to time charge the Subscriber fees and expenses for providing the services under this Agreement. Any such fees and expenses shall be exclusive of any fees and expenses which are covered by the Subscriber Terms.
11.2. Any fees and expenses that TokenMarket has notified to the Subscriber prior to the issue of Securities in respect of which TokenMarket provides services under this Agreement;
11.3. TokenMarket shall not be required or obligated to take any action in relation to any Securities or any Company unless the Subscriber agrees to indemnify the Nominee for any cost, expense (including legal fees), claim and/or charge incurred by the Nominee in such enforcement;
12.1 Save in respect of the TokenMarket's fraud, negligence or breach, neither TokenMarket nor the Nominee shall have any liability whatsoever to the Subscriber and, subject to applicable law and regulation, may use any assets it holds on trust to cover any loss, liability, damages, costs and expenses incurred or suffered by TokenMarket in the due performance of its rights and obligations under this Agreement.
12.2 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 England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).