Collinson Crowdfunding Limited
General Terms and Condition (Project & Donation Crowdfunding)
Collinson Crowdfunding Limited’s (“CCF”, “we”, “us”, “our”) crowdfunding connects creators of project or donation fundraising campaigns and with people wanting to contribute to their campaigns. Our platform allows creators to online fundraising campaign(s) to raise funds and supports contributors to find campaigns and to create pay funds to the campaigns.
- DICTIONARY & INTERPRETATION OF THE TERMS
- ACCOUNT APPLICATION & ACCESS TO SERVICES
- USER DATA
- CREATORS & CAMPAIGNS
- RECEIPT, USE AND PAYMENT OF CONTRIBUTIONS
- CREATOR FEES
- UNCLAIMED MONEY
- INFORMATION REQUIRED FOR ANTI-MONEY LAUNDERING COMPLIANCE
- LIMITATION OF LIABILITY
- TERM AND TERMINATION
- INTELLECTUAL PROPERTY
- GENERAL PROVISIONS
We provide the following services to Creators (together the “Campaign Services”):
- Listing a Creator’s Campaign on the Platform via a dedicated webpage that allows a Creator to provide information about a Creator and the Campaign to match a Creator with Contributors.
- A question and answer facility that allows Contributors to ask questions and for a Creator to respond.
- Processing payments from Contributors in accordance with these Terms.
- In respect of a donation campaign, receiving funds payments from Contributors and passing them to the Creator as batch payments in accordance with clause 6.2(g).
- The other services described in these Terms.
- Additional services that are not described in these Terms that we agree to provide to a Creator.
The Campaign Services do not include tax, legal, regulatory, financial accountancy, or other specialist or technical advice, except where clearly stated in these Terms or agreed by us in writing.
Our Services for Contributors
We provide the following services to Contributors (together the “Contributor Services”):
- Access to the Platform to find Campaigns.
- A question and answer facility that allows Contributors to ask questions and for a Creator to respond.
- Receiving, holding and paying Funds on behalf of Contributors in accordance with these Terms.
The Campaign Services are provided to Creators and are not provided to Contributors.
Contributions made to Donation Campaigns are not refundable except at our absolute discretion.
Services not licensed
We hold an equity crowdfunding licence issued by the Financial Markets Authority. Our Services in relation to Campaigns are not made under that licence or any other official approval. You do not have access to our dispute resolution service in relation to our Services.
- communicate with;
- obtain information from; and
- share information with,
Services outside New Zealand
The Platform, and Campaigns on the Platform, do not constitute an offer or solicitation in any jurisdiction in which such an offer or solicitation is not authorised, or in which the person making such offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make such an offer or solicitation. You are responsible for ensuring that you comply with the law where you are located in relation to our Platform, the Services and Campaigns.
Application of these Terms
These Terms take effect and bind you on the earliest of the following occurring:
- you agree to be bound by clicking the “I agree” (or similar) checkbox on the Platform in relation to these Terms;
- when you first access the Platform or use the Services;
- you open an Account.
Updates to these Terms
1.1 Dictionary: In these Terms, unless the context otherwise requires, the following words have the following meanings:
Your account with us maintained on the Platform (see clause 2).
Has the meaning given to that term in clause 9.1c.
Monday to Friday, other than any public holiday within the meaning of section 44 of the Holidays Act 2003 that occurs in Auckland.
A Donation Campaign and a Project Campaign (as applicable).
Has the meaning given to that term above.
Campaign Service Fee
Has the meaning given to that term in clause 9.1a.
Consumer Guarantees Act 1993.
The date on which a Campaign is stated to close (as adjusted from time to time in compliance with these Terms) or actually closes (as application).
Any information about a party that is not publicly available and which is obtained from the other party in the course of, or in connection with, the Services or the Platform.
The amount of money that a Contributor provides to a Campaign through our Services.
A person who is considering contributing, or who has contributed, funds to a Campaign.
Has the meaning given to that term above.
A person who creates a Campaign including a person who accesses the Platform or our Services for that purpose.
All data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Services on the Platform.
A fundraising campaign that raises funds for a cause and:
· is not intended to, and does not, generate a profit or other return;
· is not for the benefit of any kind of a for profit business (directly or indirectly);
· excludes a Project Campaign,
and includes all steps made in preparation for the campaign.
Even of Default
Has the meaning given to that term in clause 16.3.
The Service Fee, the Platform Fee, Additional Fees and the fees referred to in clause 8.6 in relation to interest earned on Funds (as applicable)
The Contribution funds actually received by us in our bank account from a Contributor.
Any form of value added tax anywhere, including the goods and services tax within the meaning of the New Zealand Goods and Services Tax Act 1985.
Intellectual Property Rights
Includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning.
Includes actions, suits, proceedings, claims, liabilities, damages, costs (including legal costs incurred on a solicitor and own client basis), losses and expenses.
The minimum amount of Contributions sought from Contributors for a Project Campaign for the Project Campaign to be completed.
Has the meaning given to that term in clause 8.7.
A New Zealand dollar bank account in the Creator’s (or approved beneficiary’s) name only at a registered bank in New Zealand.
Includes threatening, coercive, exploitative, banned, abusive, defamatory, pornographic, indecent, illegal.
Our website (at [add CCF website URL]) and any web application we provide that, together with the Systems, deliver the Services to you.
Has the meaning given to that term in clause 9.1b.
A fundraising campaign offering Contributors a reward or benefit (excluding any rights to or benefits in or to any person) for their Contribution to the campaign and all steps made in preparation for the campaign.
Means the Campaign Services and the Contributor Services (as applicable).
A Project Campaign with respect to which we have received Funds that are at least the value of the Minimum Target by the Closing Date.
Software, IT solutions, systems and networks (including software and hardware) including any third party solutions, systems and networks.
These general terms and conditions.
The party to these Terms that is either a Contributor or a Creator and includes any person applying open an Account (whether or not the application is completed or an Account is opened).
1.2 Interpretation: In these Terms, unless the context otherwise requires:
a clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
b all monetary amounts are stated and are payable in New Zealand dollars;
c words importing the singular include the plural and vice versa; and
d a reference to:
i a person includes an individual, body corporate, an association of persons (whether corporate or not), a trust, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal personality;
ii a statute or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, and the corresponding provisions of any replacements or amendments of any of them;
iii information includes documents, information and records in any form (whether electronic or otherwise);
iv a party to these Terms includes that party’s permitted assigns;
v personnel includes officers, directors, employees, agents, contractors, consultants and representatives of a party (but excludes the other party and that party’s personnel); and
vi including and similar words do not imply any limit.
1.3 Agreement: All parts of these Terms shall be interpreted as being complementary and mutually explanatory to each other. If, despite that, there is any inconsistency or conflict between any of them, the provisions these Terms shall take precedence, to the extent necessary to resolve such inconsistency or conflict.
2.1 Before we can provide Campaign Services to a Creator, and before we can accept Contributions for a Project Campaign, the Creator and Contributor respectively must open an Account on the Platform and provide all information requested.
2.2 We reserve the right to decline to open an Account for you, or to provide our Services to you, at our absolute discretion, including where:
a you are under 18 years old;
b your legal name does not match the legal name in any identity verification document(s) you provide to us;
c you are not resident in New Zealand;
d you do not comply with any of these Terms;
e you do not comply with any criteria or conditions we specify from time-to-time in connection with opening an Account (whether or not specified in these Terms).
We have no obligation whatsoever to provide reasons, and we will have no liability to you whatsoever, or howsoever arising, for declining to open an Account for you or to provide our Services to you.
2.3 Except with our consent, only individuals may open an Account, access the Platform and use the Services.
2.4 You may not access the Platform or use the Services on behalf of any other person (except with our consent) or impersonating any other person.
2.5 You must not, directly or indirectly, open more than one Account except with our prior written consent. If you and one or more associated persons each have an Account we may limit or prohibit use of some or all of those Accounts.
3.1 We grant to you, and you accept, a non-exclusive and non-transferable licence for the duration of these Terms to use the Platform solely for the purpose of accessing Services on the terms and conditions of these Terms.
3.2 Our provision of the Platform and Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Platform and Services to any other person.
3.3 In addition to and without limiting your other obligations under these Terms, you must:
a use the Platform for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the Platform (including data on the Platform) except as expressly provided for in these Terms;
b ensure that your software is free of all forms of malicious software at all times;
c keep all information relating to the Platform, including your password and user name, secure and free from unauthorised use;
d not challenge our (or any other persons) ownership of (including of the Intellectual Property Rights in) the Platform or any other item or material created or developed by us under or in connection with these Terms; and
e notify us in writing immediately after you become aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of the Platform, or your user name or password, in part or whole.
3.4 When accessing the Platform, you must:
a not impersonate another person or misrepresent authorisation to act on behalf of others;
b correctly identify the sender of all electronic transmissions;
c not attempt to undermine the security or integrity of the Systems;
d not use the Platform in any way which may impair the functionality of the Systems or impair the ability of any other user to use the Platform;
e not attempt to view, access or copy any information, material or data other than:
i that which you are authorised to access; and
ii to the extent necessary for you to use the Platform in accordance with these Terms; and
f not use the Platform in a manner, nor transmit, input or store any Data or other information, that breaches any third party right (including Intellectual Property Rights and privacy rights) or law, or that is Objectionable.
3.5 We will use our reasonable endeavours to make the Platform and Services available during the operating hours we notify on the Platform or (if not specified) at reasonable times. However, we may stop, suspend or alter access to the Platform, or access may otherwise become unavailable, without notice, including because of technical difficulties such as telecommunication failures or disruptions, non-availability of any third party services and unforeseen maintenance. To the maximum extent permitted by law, we have no liability to you whatsoever, and howsoever arising, for any Losses that you suffer or incur in connection those matters.
3.6 Through the use of web services and application programming interfaces (APIs), the Platform may interoperate with third party service features. To the maximum extent permitted by law we do not make any warranty or representation on the availability of those features or of information from them provided through the Platform. Without limiting that, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. If we exercise our right to cease the availability of a third party feature, to the maximum extent permitted by law you are not entitled to any refund, discount or other compensation.
4.1 You acknowledge and agree that:
a we may require access to the Data to exercise our rights and perform our obligations under these Terms;
b to the extent that this is necessary we may authorise a member or members of our personnel to access the Data for this purpose;
c you must arrange all consents and approvals that are necessary for us to access the Data in compliance with law; and
d we will take standard industry measures to back up all Data stored on the Platform and you acknowledge and that it is advisable for you to keep a separate back-up copy of all Data.
4.2 You agree that we may store Data (including any personal information) in secure servers in countries outside New Zealand and we may access that Data (including any personal information) in countries outside New Zealand and in New Zealand from time to time.
5.1 A Campaign can only be listed on the Platform:
a once the Creator has provided all required information about the Campaign on the Platform;
b the Creator has met all conditions and requirements we specify in relation to the Campaign (including those specified in these Terms); and
c with our consent, which we may withhold at our absolute discretion.
5.2 In addition to, and without limiting, a Creator’s other obligations in these Terms, a Creator must:
a act ethically, fairly, honestly and responsibly at all times in relation to a Campaign;
b not raise funds on behalf of any other person except with our consent;
c obtain the consent of any beneficiary of a Campaign (other than Contributors) to run the Campaign and of any other person referred to in the Campaign (we can require the Creator at any time to provide evidence satisfactory to us that that such a required consent has been obtained);
d clearly state on the Platform the purpose for which the funds raised will be used;
e only use the Net Funds for the purpose stated in the Campaign;
f not loan or otherwise advance the Funds to anyone else, including another person, whether in whole or part, other than to the extent this was disclosed on the Platform to Contributors during the Campaign (and where otherwise permitted, or not prohibited, by these Terms);
g not publicly state that a Campaign has been (or will be) launched on the Platform until we confirm in writing that the Campaign can be launched on the Platform;
h not use our Services or the Platform to make any form of equity crowdfunding offer or other investment offer.
5.3 In addition to, and without limiting, a Creator’s other obligations in these Terms, a Creator:
a is responsible for:
i preparing for a Campaign and for all costs and expenses associated with the Campaign;
ii ensuring that the Creator complies at all times with all law in relation to the Campaign including obtaining any necessary licences, consents, approvals and exemptions required to offer the Campaign, and to access the Platform and use the Campaign Services;
iii complying with all reasonable policies, procedures, standards and guidelines we provide to you, whether before or after the date you enter into these Terms (such policies, procedures, standards and guidelines to form part of these Terms);
b must promptly do anything we reasonably request in relation to a Campaign including providing further or amended information to Contributors; and
c must promptly make decisions (including providing approvals) as required to allow us to provide the Campaign Services.
5.4 Once a Campaign has been listed on the Platform the Creator may not, except with our prior written consent (not to be unreasonably withheld or delayed):
a withdraw a Campaign before the Closing Date (this applies to all Project Campaigns and to relevant Donation Campaigns);
b change the specified Closing Date;
c change the amounts sought to be raised under a Campaign (if specified);
d make any material change to other terms and conditions of a Campaign;
e respond to all reasonable questions made on the Platform’s Q&A facility for a Campaign. [Will there be Q+A functionality?]
5.5 Each Creator agrees that we may, at our absolute discretion and acting reasonably:
a suspend or cancel a Campaign if we have established any risk of fraud, identity theft, recipient misrepresentation or fraud, or false cause;
b remove or amend information you publish on the Platform, publish additional information on the Platform (and provide it directly to Contributors) in relation to our Campaign Services or a Campaign;
c moderate questions and answers on any Q&A facility including withholding from publication and editing any question or answer;
d otherwise suspend or cancel a Campaign at any time for any reason without notice and without liability to the Creator of any kind whatsoever.
However, we will, wherever reasonably possible, discuss any potential suspension or cancellation of a Campaign with the Creator and seek the Creator’s views before deciding whether to suspend or cancel.
5.6 To the maximum extent permitted by law, we are not responsible, and we are not required to compensate you:
a if a Campaign is not successful (including because it is not a Successful Campaign) for any reason;
b for a failure by Contributors to transfer any Contributions (or all of them) to us; or
c for any deductions or withholdings made from Contributions before we receive them.
5.7 We will only provide personal information about a Contributor to a Creator with the Contributor’s consent or as necessary in connection with a Campaign (for example, the delivery address of Contributors in connection with providing promised rewards as part of a Project Campaign). Each Creator agrees and undertakes that the Creator will only use that information for the purposes of complying with the Creator’s obligations to a Contributor, as required by law and otherwise with a Contributor’s authorisation.
6.1 Contributors must make their own independent assessment of Creators, Campaigns and any beneficiaries of Campaigns.
6.2 Our Services do not include carrying out checks (including background checks) on Creators, their Campaigns or any beneficiaries, or monitoring Creators or their Campaigns, except the extent described in these Terms. In addition and without limiting that:
a we do not verify the Campaigns or information Creators provide through the Platform;
b we make no representation in relation to, and do not warrant, the accuracy or completeness of any information provided by Creators or their compliance with law;
c we make no representation, view, or judgment as to the commercial viability, growth prospects, or potential future success of a Project Campaign;
d we are not responsible for how a Creator or other beneficiary of a Campaign uses Net Funds we provide to them or for checking that they are used for the stated purpose(s); and
e the Creator only is responsible for ensuring that stated rewards or benefits for a Project Campaign are provided to Contributors entitled to them on the terms specified in the Project Campaign- we have no responsibility if stated rewards or benefits are not received, do not comply in full with the relevant terms and/or are incomplete, faulty or cause you Loss.
6.3 Each Contributor acknowledges and agrees that:
a We may moderate questions and answers on any Q&A facility including withholding from publication and editing any question or answer. However, in doing so, we do not verify the content or take responsibility for it.
b We may suspend or cancel a Campaign at any time for any of the reasons or grounds noted in these Terms. We have no obligation to return any Funds contributed to a suspended or cancelled Campaign except for any Funds we hold on your behalf (see clause 8.3) in relation to a cancelled Campaign.
c Without limiting any other provision of these Terms, we can provide the Contributor’s information, including personal information, to a relevant Creator:
i as reasonably required in connection with a Campaign to which the Contributor has made (or has agreed to make) a Contribution; or
ii where the Contributors has authorised us to do so.
6.4 Each Contributor irrevocably authorises us to pay their Contributions (less to the relevant Creator, or to the beneficiary of a Campaign if not the Creator (at our discretion).
6.5 Each Contributor:
a must promptly send to us the amount(s) they have committed to contribute to the Campaign in the manner we notify to the Contributor or as otherwise specify on the Platform; and
b ensure that we receive the full committed Contribution including by paying any additional payment fees charged or deducted by banks or other payment service providers.
7.1 We will receive, hold and pay Contributions in relation to a Campaign in accordance with these Terms and law. Subject to the rest of this clause 8, we are not responsible for:
a contributions transferred to us until, and to the extent, we have received them in our nominated bank account;
b any amounts deducted or withheld money transferred to us including amounts deducted by banks and other payment providers.
Our Services do not include taking any steps to seek payment of unpaid Contributions (except for emailed requests to a Contributor for payment for a reasonable time after the Contributor commits to paying the Contribution) or to recover third party deductions or withholdings from Contributions.
7.2 Contributions are not repayable or transferrable except to the extent stated in these Terms.
7.3 We will hold on trust all Funds received for and on behalf of Contributors and use them in accordance with these Terms.
7.4 Each Contributor acknowledges and agrees that we can pay the Funds to the Creator the Funds were pledged to in accordance with these Terms and the terms and conditions of the relevant Campaign.
7.5 Each Creator acknowledges and agrees that, without limiting our other rights under these Terms:
a the Funds are received by and held by us on trust on behalf of the Contributors until paid to the Creator in accordance with these Terms;
b the Creator has no right to be paid or to claim the Net Funds until, and to the extent, that either:
i a Successful Campaign has closed and a Creator has complied with a Creator’s obligations under these Terms and any reasonable conditions we specify for release of the Net Funds (or any part of them);
ii with respect to a Donation Campaign, we have agreed to release the Net Funds to the Creator in accordance with these Terms;
c we have the right to return Funds to a Contributor at our absolute discretion (acting reasonably) including where a Project Campaign does not meet the Minimum Target by the Closing Date, the Creator withdraws the Campaign or we cancel the Campaign or terminate these Terms.
7.6 Each Creator agrees that we may, at our absolute discretion, prevent a Contributor from making a Contribution to a Campaign (or return a Contribution to the Contributor) without giving reasons, and a Creator irrevocably appoints us, and consents to us acting, as the Creator’s agent for that purpose.
7.7 If we do not receive Funds equal to at least the Minimum Target within five (5) Business Days after the Closing Date of a Project Campaign we will return to Contributors any Funds we hold on their behalf in relation to that Project Campaign.
7.8 Subject to these Terms, we will pay Net Funds for a Project Campaign within ten (10) Business Days of the Closing Date of a Successful Campaign.
7.9 Subject to these Terms, Net Funds for a Donation Campaigns will be paid out to a Creator in the form of a batch payment [each week, fortnight, month] / [at a regular time determined at our discretion].
7.10 Any interest earned on Funds while we hold them are payable to us as a fee from to us for our services in connection with receiving, holding and paying Funds. We have no obligation to pay any such interest to you.
7.11 We may withhold, deduct, pay and/or set-off from the Funds, and we have no obligation to pay to a Creator or to return to a Contributor:
a amounts payable to us in accordance with clause 9 including the Fees;
b any amounts that are payable to any third party, including (in the case of a Creator) to the Contributor who provided the Funds;
c amounts to the extent there is, in our reasonable opinion, is a risk that relevant Funds are or will be payable to the Contributor (in the case of a Creator) or another person;
d amounts that we withhold in accordance with 10.4.
The balance of the Funds we hold after taking into account such withholdings, deductions, payments and set-offs are the “Net Funds”.
7.12 Without limiting any other provision in these Terms, you agree and acknowledge that, to the maximum extent permitted by law, we are not responsible for delays in confirming any Funds because of inadequate or unclear information in relation to Funds we receive.
7.13 You agree and acknowledge that the Funds will not be held in a segregated bank account, may be held in more than one bank account and may be mingled with funds of other persons.
7.14 You are responsible for all foreign currency exchange risk arising in connection with these Terms, or the exercise by us of our rights, under these Terms (but this does not provide any right for a Creator to have Net Funds paid other than to a Creator’s Nominated Bank Account).
8.1 In return for our Campaign Services, a Creator will pay to us the following amounts:
a For Project Campaigns only, a non-refundable service fee of $500(Campaign Service Fee).
b A platform fee of 5% of the Funds (“Platform Fee”) less the value of any Campaign Service Fee we receive for the same Campaign (to the extent the value of the Campaign Service Fee is equal to or less than the value of the Platform Fee). In the case of a Project Campaign, the Platform Fee is only payable for a Successful Campaign.
c Other fees agreed with a Creator from time-to-time for additional services (“Additional Fees”).
d An amount equivalent to any interest earned on the Funds (see clause 8.6).
8.2 The following Fees for a Project Campaign must be paid as follows:
a the Campaign Service Fee within five (5) Business Days of the Closing Date of a Successful Campaign;
b the Platform Fee on the earlier of the following dates after the Closing Date of a Successful Campaign:
i five (5) Business Days; and
ii the date on which we transfer some or all of the Funds to a Creator (or to a third party (other than a Contributor) on a Creator’s behalf); and
c Additional Fees on the dates agreed and otherwise promptly on request from us.
8.3 Fees for a Donation Campaign must be paid on or before the time a payment of Net Funds is made to the Creator or to a third party on a Creator’s behalf including a beneficiary of a Donation Campaign (at our absolute discretion).
8.4 Each Creator hereby irrevocably authorises us to deduct from Funds we receive in relation to the Creator’s Campaign, by way of payment to us, all amounts (including Fees and GST) due and payable from the Creator to us under or in connection with these Terms. We may also set-off those amounts against amounts payable by us to the Creator.
8.5 All Fees and other amounts payable under these Terms exclude GST (unless we state otherwise in writing), which a Creator must pay to us on taxable supplies under these Terms at the same time as a Creator make payment of those Fees or other amounts.
9.1 All payments made under or in connection with these Terms (including payments of Net Funds to a Creator) must be made by electronic funds transfer only (except where we transfer funds between our own bank accounts) and:
a without deduction, withholding or set-off (other than as permitted or required by these Terms or as required by law); and
b to the party’s nominated bank account and, where we pay any amounts to a Creator (including Net Funds), to a Creator’s Nominated Bank Account.
9.2 Subject to these Terms, we will use our reasonable endeavours to transfer the Net Funds to a Creator in accordance with these Terms, conditional on the recipient bank agreeing to receive (and not returning) the payment.
9.3 If we have any concerns in connection with our obligations under AML/CFT law or other law, we may (but we are not obliged to), at our absolute discretion (and without any liability to a Creator whatsoever and howsoever arising) freeze the Funds and withhold payment of Funds otherwise payable to a Creator or a Contributor.
10.1 If we hold any amounts for you and:
a they are unclaimed by you for 5 years after we receive them; or
b we are unable to pay or return that amount to you (in part or whole) at any time including because we are unable to locate and communicate with you despite making reasonable efforts to do so,
the amounts shall be dealt with by used as permitted or required under the Unclaimed Money Act 1971 (or any equivalent law in any jurisdiction). In addition and without limiting the foregoing, we will have no liability to you whatsoever, and howsoever arising, with respect to the unclaimed amount, if it remains unclaimed for six years after receipt or is otherwise dealt with as permitted or required under the Unclaimed Money Act 1971 (and any equivalent law in any jurisdiction).
11.1 Each Creator agrees that the Creator will not create any Campaigns, other than using our Campaign Services, for the period commencing on the date these Terms apply to you until the date that the relevant Campaign is withdrawn in compliance with these Terms or becomes a Successful Campaign. [Does CCF want to be sole platform used for the offer for the duration while it’s live?
Do a Creator want a break fee if a project campaign later raises funds?]
11.2 Without limiting our other rights or remedies under these Terms or at law, if a Creator breach clause 12.1 a Creator must pay to us immediately on demand a fee of the greater of $[ ] and [ ]% of the Minimum Target (“Break Fee”).
12.1 You must provide all information, including with respect to our obligations under anti-money-laundering laws and tax information exchange laws, that we request, and that we otherwise require to verify your identity and other information in about you and any related persons. You must take any steps we require to match you to your identity and to verify other information about you. Information we can request includes information:
a about you and any other relevant persons, including beneficial owners and persons acting on your behalf;
b on your (and others) source of wealth and funds;
c details of your (and others) tax status in New Zealand and elsewhere (including taxpayer identification numbers).
12.2 You acknowledge and agree that we can provide, exchange, hold and use information and documents you provide in connection with these Terms (including under this clause 3), or that is otherwise held by us about you or any related person, for compliance purposes, including providing that information to:
a third party service providers who support us to meet our obligations at law, including to verify the identity of you and other persons;
b New Zealand and overseas governments (including tax, regulatory & enforcement authorities).
12.3 You acknowledge and agree that:
a We may, without notice, not open an Account, suspend or close your Account, cease providing Services to you, and/or terminate these Terms, in connection with information you provide (or that you fail to provide) to us or that we hold about you or any related person.
b We may not be able, and we are not obliged, to disclose to you any matters relating to our use or disclosure of such information.
c Opening an Account for you does not, in itself, entitle you to access the Services and we can withhold access to the Services at our absolute discretion.
12.4 You agree to:
a provide to us promptly on request, at all times during the term of these Terms, all information concerning you, your organisation (where relevant) and personnel (where relevant) that we reasonably request to assist us to provide the Services and to comply with our obligations at law;
b promptly notify us if any material and relevant change of circumstance occurs in connection with you or a Campaign.
We may not be able to provide our Services to you or to continue to provide our Services, if some of that information and those documents are not provided to us.
13.1 We will provide the Services to you with reasonable care, skill and diligence.
13.2 Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when signed, will constitute binding obligations on the warranting party.
13.3 Each Creator warrants that the following is true as at the date these Terms first apply to the Creator, and on an on-going basis:
a all information that has been, or will be, given by or on behalf of the Creator (including by any of the Creator’s personnel) to us or the Contributors about the Creator or the Creator’s Campaign was, or will be when given (and on an ongoing basis), true and complete in all material respects and not misleading, deceptive, unsubstantiated or confusing in any respect;
b the Creator intends to, and will, use the Funds for the purpose stated in the Campaign and not for any other purpose, in whole or part.
13.4 To the maximum extent permitted by law, but subject to our obligations to you at law that we cannot contract out of (including those arising under the CGA) and any express provision in these Terms to the contrary:
a we give no warranty or condition with respect to the quality, fitness for any particular purpose or otherwise of the Services or the Platform, including that they will meet your requirements or be suitable for a particular purpose, or that they will be secure, uninterrupted or error free; and
b all such warranties and any other warranties, whether express or implied by law, trade, custom or otherwise, are excluded.
14.1 We are entitled to rely upon any advice and information provided by a Creator or by any person on a Creator’s behalf and we will not verify or take responsibility for the advice and information so provided.
14.2 To the maximum extent permitted by law, any approval, acceptance, review or similar act (“Action”) by us (including the failure to take any Action) in relation to a Creator or any part of a Campaign, and whether required by law or otherwise, will not:
a limit (whether by waiver, estoppel or otherwise) a Creator’s obligation to create and continue a Campaign in accordance with these Terms and law; or
b prejudice any right or remedy that may be available to us under these Terms or at law.
15.1 Where the Consumer Guarantees Act 1993 (CGA) applies to these Terms, no provision in these Terms is intended to have the effect of limiting or restricting your rights under the CGA, except to the extent permitted by Law. However where you are a business, you agree that you are acquiring the Services for the purposes of a business and that the CGA does not apply to the supply of the Services or these Terms, and that it is fair and reasonable that it does not do so.
15.2 To the maximum extent permitted by law, but subject to our obligations to you at law that we cannot contract out of (including those arising under the CGA):
a We shall have no liability to you of any kind whatsoever under or in connection with these Terms or the Services and whether in contract, tort (including negligence), breach of statutory duty, equity or otherwise.
b Without limiting clause 15.2a, to the extent we have any liability to you, our maximum aggregate liability to you for all matters must not exceed $2,000 (with respect to a Contributor) or the Fees paid by you under these Terms (with respect to a Creator).
15.3 In addition to and without limiting clause 15.1, and subject to our obligations to you at law that we are not permitted to contract out of (including those arising under the CGA), neither party is liable to the other under or in connection with these Terms for any:
a loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill;
b consequential, indirect, incidental or special damage or loss of any kind.
15.4 Clauses 15.2 and 15.3 do not apply to limit or exclude a party’s liability for that party’s wilful default, fraud or dishonesty.
15.5 Each party must take reasonable steps to mitigate Loss it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
16.1 These Terms continue until they are terminated by either party in accordance with these Terms.
16.2 Without limiting clause 6.5, a party may terminate these Terms on five (5) Business Days written notice to the other. However, despite that, a Creator or Contributor (as relevant) may not terminate these Terms under this clause 16.2 at any time while a Creator has a Campaign listed on our Platform or while we hold any Funds for a Creator or on behalf of Contributors in relation to a Creator’s Campaign (whether or not then active).
16.3 In addition to other provisions relating to the term and termination, a party (Party A) may, by notice to the other party (Party B), immediately terminate these Terms if (each of the following is an “Event of Default”):
a Party B breaches any provision of these Terms and the breach is not:
i remedied by Party B within five (5) Business Days of the receipt of the notice from Party A requiring it to remedy the breach; or
ii capable of being remedied;
b Party B has an official manager, official assignee, trustee, receiver, voluntary administrator, liquidator or provisional liquidator, or anyone in a similar role, appointed for all or a material part of Party B’s assets or undertaking;
c Party B has any distress, attachment, or execution levied, issued, enforced or obtained on or against all or substantially all of Party B’s assets;
d Party B, being an individual, is at risk of being declared, or is declared, bankrupt, or enters into the no asset procedure;
e Party B ceases (or threatens to cease) carrying on business;
f any representation or warranty made by Party B is incorrect, untrue or misleading in any material way, with the result that a material Loss is, or is likely to be, suffered by Party A;
g for any length of time that is reasonable in the circumstances, Party B is not contactable or does not respond to communications;
h Party B commits an act of serious misconduct, including fraud or dishonesty.
16.4 If a Creator commits or is subject to an Event of Default (whether or not continuing at that time), we can immediately take or refrain from taking any action we consider reasonable, including:
a restrict or suspend the Creator’s access to, and use of, the Creator’s Account, the Campaign Services and/or Platform;
b suspend or cancel a Campaign and/or a pending Campaign.
16.5 Expiry or termination of these Terms does not affect each party’s rights and obligations accrued before the termination or expiry date. That includes that a Creator must pay the Fees for Campaign Services provided before the expiry or termination date. The Fees become immediately due and payable upon expiry or termination of these Terms.
16.6 Provisions which, by their nature are intended to survive expiry or termination of these Terms, including clauses 8, 9, 10, 11, 15, 17 and 18, continue in force.
17.1 Subject to clause 17.4, title to, and all Intellectual Property Rights in, the Services and the Platform is and remains our property (and the property of our licensors). You must not dispute that ownership.
17.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant to us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for:
a any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms; and
b for the purpose of retaining a record of a Campaign on the Platform after the Campaign has closed or been withdrawn.
17.3 If you provide us with ideas, comments or suggestions relating to the Platform, the Services, the Documentation (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works) are owned solely by us; and
b we may use or disclose the feedback for any purpose.
17.4 To the extent not owned by us, you grant to us a royalty-free, transferable, irrevocable and perpetual licence to use any know how, techniques, ideas, methodologies developed during the course of providing the Services.
17.5 You acknowledge that the Platform may link to third party websites or feeds that are connected or relevant to the Platform. Any link from the Platform does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds, or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites and feeds.
18.1 Each party agrees that, unless it has the prior written consent of the other party, it will:
a at all times, keep confidential and not use the Confidential Information of the other party; and
b ensure that any personnel or professional advisor to whom a party discloses other party’s Confidential Information are aware of, and comply with, the provisions of this clause 18.
18.2 The obligations of confidentiality in clause 18.1 do not apply to any disclosure or use:
a permitted under these Terms;
b for the purpose of performing these Terms or exercising a party’s rights under these Terms;
c required by law or a court of competent jurisdiction;
d of Confidential Information which:
i is generally publicly available through no fault of the recipient of the Confidential Information or its personnel; or
ii was rightfully received from a third party without restriction or without breach of these Terms or law; or
e by us if required as part of a genuine sale (or attempted sale) of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 18.
18.3 Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of these Terms, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control provided that we may keep one copy for compliance purposes.
19.1 Rights of third parties: No person other than the parties to these Terms has any right to a benefit under, or to enforce, these Terms.
19.2 Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party. No waiver of any breach, or failure to enforce any provision, of these Terms at any time by a party shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with these Terms.
19.3 Independent contractor: We are an independent service provider to you. No other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms except to the extent expressly stated in these Terms.
19.4 Notices: A notice given by a party under these Terms must be delivered via email to an email address notified by the other party for this purpose. In addition, you consent, for all purposes, to receive any notices and communications under or in connection with these Terms in electronic form or via electronic process (including via the Platform or email) we nominate from time-to-time (acting reasonably).
19.5 Severability: Any illegality, unenforceability or invalidity of a provision of these Terms does not affect the legality, enforceability or validity of the remaining provisions of these Terms.
19.6 Rights and remedies are not mutually exclusive: To the fullest extent permitted by law, a party’s rights, remedies and discretions, whether provided for in these Terms, at law or otherwise, are not mutually exclusive, can be exercised more than once, and are cumulative and not alternative, and may be exercised independently, or in any combination, at any time by that party.
19.8 No assignment: You may not assign or transfer any right or obligation under these Terms without our prior written approval.
19.9 Law: These Terms is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms.