Our purpose is to promote enterprise in the UK by facilitating communications within the law between entrepreneurs and investors. All use of the Site is subject to the following terms and conditions to which you must agree before being able to use it. The main headings in these terms and conditions are:
- Interpretation
- Your use of the service
- Disclaimers and limitation of liability
- Access to the service
- Information entered by you
- Discussion boards
- User name and password
- Your details/data protection
- Fees and commission
- Duration and termination
- Regulation
- Risk warnings
- Indemnity
- Complaints
- Conflicts of interest
- Hypertext links
- User restrictions
- Assignment
- Complete agreement
- 20. General
1. INTERPRETATION | 1.1. | The following terms have the following meanings when used in these terms and conditions or elsewhere on the Site unless the context otherwise requires:
"Authorised Person" has the meaning given in section 31 of FSMA;
"Financial Promotion Order" means FSMA (Financial Promotion) Order 2005;
"FSMA" means the Financial Services and Market Act 2000;
"FSA" means the Financial Services Authority;
"High Net Worth Individual" has the meaning given to the term "certified high net worth individual" in article 48 of the Financial Promotion Order;
"Information" means all of the information on the Site including information entered by us, by investors and by those seeking to raise capital;
"Personal Data" has the meaning given in the Data Protection Act 1998;
"Service" means the services and facilities provided on, by or through us;
"Site" means our website www.fisma.org;
"Sophisticated Investor" has the meaning given to the term "self-certified sophisticated investor" in article 50A of the Financial Promotion Order;
"we", "us" and "our" mean FiSMA Limited (a private limited liability company incorporated in England and Wales with company registration number 4749602);
"you" means the person accessing the Site for any reason and "your" shall be interpreted accordingly.
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| 1.2. | The Site is governed by the law of England and Wales and the English courts shall have exclusive jurisdiction. |
| 1.3. | Except where expressly defined, terms and expressions used in these terms and conditions or elsewhere on the Site will bear the same meaning as that given in FSMA, relevant statutory instruments made under FSMA and the FSA Handbook. |
2. YOUR USE OF THE SERVICE
| 2.1. | Any use by you of the Site or any other website operated by us or on our behalf (and any presentation given by you at any event organised by or run under the auspices of us) is conditional upon and subject to these terms and conditions. By using the Site, you agree to accept these terms and conditions. |
| 2.2. | You accept that integrity is key to the Site and agree to act honestly in all your dealings with or connected to the Site and to show respect and politeness to other users of the Site. You must comply with FSMA and insofar as you are obliged to do so with the FSA Handbook and/or the rules of any professional body to which you belong. If you become aware of a breach of FSMA by us or by any person using the Service you must let us know. |
| 2.3. | If you self-certify yourself as a Sophisticated Investor or a High Net Worth Individual you must do so honestly. |
| 2.4. | We make it clear that you must not seek advice from us as to the merits of you entering (or refraining to enter) into a particular transaction. If you do seek such advice we decline to give it and recommend that you seek such advice from an Authorised Person. |
| 2.5. | You may not sell, resell, retransmit or otherwise make the Information available in any manner or on any media to any third party, unless we specifically consent in writing to you doing so and you are permitted to do so by FSMA and you comply with the FSA Handbook and/or the rules of any professional body to which you belong. |
| 2.6. | Copyright and all other intellectual property rights subsisting in the Information is owned by us or the providers of such Information. Unless you are the provider of the contents of the Information reproduction of part or all of the contents of the Information in any form is prohibited save that you may print or download to a local hard disk extracts from the Information for your personal use only. |
3. DISCLAIMERS AND LIMITATION OF LIABILITY
| 3.1. | We and our affiliates, officers, directors, employees, professional advisers, agents and licensors cannot and do not make any warranties or representations of any kind. |
| 3.2. | We do not undertake any steps to check the accuracy of any information provided by or on behalf of any investee company. You should confirm to your own satisfaction the accuracy and completeness of any information prior to entering into any investment. |
| 3.3. | Due to human error and the inherent hazards of electronic distribution, there may be delays, omissions or inaccuracies in the Information and the Information is provided to you on an "as is" basis without warranties of any kind. |
| 3.4. | We and our affiliates, officers, directors, employees, professional advisers, agents and licensors disclaim to the fullest extent permitted by applicable law, with respect to this Site and the Information, all express, implied and statutory warranties of any kind to you and to any third party including warranties as to accuracy, timeliness, completeness, fitness for purpose, satisfactory quality, non-infringement, currentness, or any representations or warranties arising from usage or custom or trade or by operation of law. We and our affiliates, officers, directors, employees, professional advisers, agents and licensors assume no responsibility for the consequences of any errors or omissions in the content or otherwise relating to the Site. |
| 3.5. | We do not exclude liability for death or personal injury caused by the negligence of us, our employees or agents, or for fraud. |
| 3.6. | The responsibility for a business plan, information memorandum, private placing memorandum or other fund raising document and its compliance with the law remains with the issuer (or offeror) of securities, its directors and those persons named as accepting responsibility (if any) in the fund raising document. We accept no responsibility or liability in relation to such documents and without prejudice to the foregoing generality we do not accept any responsibility or liability for any changes to such documents caused by software or other error. |
| 3.7. | The specimen legal documents contained in or accessed through the Site do not provide legal advice; they provide a first discussion draft. If legal advice is required the services of a solicitor must be sought. The authors of the documents and we do not know the context in which the documents may be used and cannot assume any responsibility for their proper and correct use. Also, the law changes and some of the documents are not up to date. The authors and we shall not be liable to any person with respect to any loss or damage caused or alleged to be caused directly or indirectly by the information or any mistake in the documents contained on the Site (except to the extent that by the law relating to the Site it is unlawful to exclude such liability). |
| 3.8. | You acknowledge that the limitation of our liability under this term is reasonable and that we would not have agreed to the fees (if any) charged by us in connection with the provision of the Services except on the basis of such limitation of liability. |
4. ACCESS TO THE SERVICE
| 4.1. | We cannot guarantee that access to the Service will be uninterrupted and error free and we will not be responsible if the Site becomes inaccessible for any reason. |
| 4.2. | We make no warranty that the Service is free from infection by viruses or anything else that has contaminating or destructive properties. |
| 4.3. | You understand and expressly agree that use of the Service is at your sole risk, and that any material and/or data downloaded or otherwise obtained through the use of the Service is at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the use of the Service. |
| 4.4. | Your access to the Service may occasionally be restricted to allow for repairs, maintenance or introduction of new facilities or services. Should this occur, we will attempt to restore the Service as soon as we reasonably can. |
| 4.5. | It is your responsibility to: |
| (a) | obtain and maintain the equipment necessary to access and use the Site; |
| (b) | pay all telephone and other costs associated with accessing the Service; and |
| (c) | make your own back up arrangements. |
5. INFORMATION ENTERED BY YOU
| 5.1. | You may enter information on the Site where and as permitted by us from time to time. |
| 5.2. | We do not approve, endorse, select, modify or otherwise exercise control over Information entered by you on the Site and do not accept responsibility for or make any warranties in connection with or recommend that you or any third party rely on such Information. We reserve the power to remove or modify material: |
| (a) | which is, or is alleged to be, illegal, defamatory or in breach of copyright; |
| (b) | in response to a request from the FSA or any other body which is empowered by or under any enactment to make such a request; |
| (c) | when otherwise required to do so by the law; |
| (d) | on request, when there is a reasonable explanation for such request; |
| (e) | where we have reason to believe untrue, insufficient, misleading, ambiguous, unsubstantiated or conflicting information has been supplied; |
| (f) | where in our opinion there has been a breach of these terms and conditions; |
| (g) | where in our opinion there is a risk that the Site will be brought into disrepute; |
| (h) | if it is an offer by a public company and we have reason to believe the minimum amount has not been raised within 40 days; or |
| (i) | which is older than 3 months from original display (unless we have otherwise agreed). |
| 5.3. | You agree not to enter any Information on the Site which: |
| (a) | is objectionable including, without limit, information which is defamatory, obscene, threatening, untrue or in breach of any applicable laws, rules, regulations or market conventions (including, without limit, financial services regulations); |
| (b) | is in breach of any person's rights (including without limit, copyright and confidentiality); |
| (c) | contains a virus, cancelbot, Trojan horse, worm or is otherwise harmful; |
| (d) | is likely to bring the Site into disrepute; or |
| (e) | is in breach of these terms and conditions. |
| 5.4. | If you are a director of or an adviser to a company attempting to raise capital through the use of the Site you confirm you are satisfied the directors of the company seeking capital: |
| (a) | honestly believe that the Information, in relation to the capital raising, entered on the Site on behalf of the company seeking capital (excluding opinions views and forecasts) is true; |
| (b) | honestly believe opinions, views and forecasts contained in such Information are honestly held; |
| (c) | have not deliberately omitted any material matter of which they are aware which makes such Information to their knowledge, inaccurate or misleading and in particular but without limiting the foregoing generality they have fairly disclosed or will fairly disclose to any investor (prior to any investment) introduced directly or indirectly through us: |
| i. | i. details of any arrangements (including loan and remuneration arrangements) between the company seeking capital and its directors; |
| ii. | ii. any fee and/or commission arrangements and/or options or other interest granted over the shares of such company in connection with the capital raising; |
| iii. | iii. litigation (including litigation known to be threatened); |
| iv. | iv. remuneration paid to directors over the previous 12 months and estimated to be payable over the next 12 months; |
| v. | v. share capital (authorised, issued and under option); |
| vi. | vi. unusual arrangements or commitments; |
| (d) | you are not acting in breach of FSMA (e.g. if you are arranging deals in investments you are a company making such arrangements for the purposes of issuing your own shares or you are making such arrangements with a view to the transaction being with or through an Authorised Person or you are a professional adviser working within the excluded activities); |
| (e) | you will provide to us any information or explanation known to you in such form and within such time limit as we may reasonably require for the purpose of demonstrating these terms and conditions are being or have been complied with. |
| 5.5. | If you are a potential investor or an adviser you confirm that any information you provided to us is correct and complete and that you will promptly inform us of any changes. |
| 5.6. | By entering any Information on the Site you hereby: |
| (a) | grant us a worldwide non-exclusive licence to use copy, distribute, publish and transmit such Information in any manner we wish (including, without limit, archiving and making available such information as part of the Service); and |
| (b) | consent to other users of the Site commenting on any Information entered by you and to such comments being available to other users of the Site. |
| 5.7. | You acknowledge that one of the aims of the Site is transparency and if you are an investee company you consent to us publishing on the Site any information provided to us by you or on your behalf or relating to you from one of your financial or other professional advisers. |
6. DISCUSSION BOARDS
| 6.1. | Discussion boards are or will be provided on the Site. Users of such facilities are reminded that unless they are an Authorised Person they must not do anything which could constitute a regulated activity for the purposes of FSMA. In particular if you are not an Authorised Person you must not carry on a business of advising on investments. You may also be committing a criminal offence if you make misleading statements. |
| 6.2. | We reserve the right to reveal your identity (or whatever information we may have about you) in the event of a complaint or legal action arising from any information entered on the Site by you or on your behalf. |
7. USER NAME AND PASSWORD
You agree to keep your username or password confidential. You are fully responsible for all use of the Service made using your username and password. If you believe that there has been a breach of security of your username and password you should notify us immediately. You must not make use of another user's username or password and any such activity may amount to a breach of the criminal law.
8. YOUR DETAILS/ DATA PROTECTION
| 8.1. | All Personal Data you supply to us will be treated in accordance with the Data Protection Act 1998. |
| 8.2. | If there are any changes to the Personal Data which you supplied to us upon initial registration or thereafter (including FSA registration numbers) it is your responsibility to update it; any failure to do so will constitute a breach of these terms and conditions. You may edit the Personal Data supplied by you at any time and have the Personal Data you supplied deleted from our records if the agreement is terminated. |
| 8.3. | We will collect and use Personal Data you supply to us in order to: |
| (a) | restrict or permit access to parts of the Site; |
| (b) | operate and enhance the Service; and |
| (c) | send you specific newsletters, emails or correspondence relating to the Site which, in our opinion, may be of interest to you. |
| 8.4. | Further, in order to enable us to monitor and improve the Site, we may gather certain information about you when you use the Service, including details of your operating system, browser version, domain name and IP address and the details of the website from which you came. We may use cookies to store information such as your User ID and your session identifiers to enable us to identify whether you are registered on to the Site and, if so, to shortcut your access to the Site. |
| 8.5. | We will not communicate your Personal Data to any third party except: |
| (a) | our professional advisers and, where appropriate, service providers; |
| 8.6. | When accepting these terms and conditions, you consent to the limited processing of your Personal Data as detailed in the preceding three clauses. Withdrawal of such consent will entitle us to terminate your use of the Service. |
| 8.7. | We endeavour to take all reasonable steps to protect your Personal Data, but cannot guarantee the security of any data you disclose online. You accept the inherent security implications of dealing on-line over the internet and will not hold us responsible for any breach of security unless we have been negligent or in wilful default. |
| 8.8. | You agree that we owe you no duty to disclose or use for your benefit any fact, matter or thing which comes to our notice, or to the notice of any employee or director of ours or any person so connected, in the course of providing the Service to others or in the event that such disclosure or use would be a breach of duty or confidence to any other person. |
| 8.9. | We may send you emails from time to time. These emails may be from us or our professional advisers and contain regulatory or other information which we feel we need or ought to communicate to you and accordingly if you tell us you no longer wish to receive such emails it will entitle us to terminate your use of the Service. |
9. FEES AND COMMISSION
| 9.1. | So far as possible we intend to make the Service free to investors (including Sophisticated Investors and High Net Worth Individuals). |
| 9.2. | Fees will be payable by persons seeking to raise money as follows |
| 9.2. | a fixed fee of £100 plus VAT will be payable to FiSMA Limited when posting documents on the Site. |
| 9.3. | VAT will be payable in addition to the fee where it is appropriate to charge VAT. |
| 9.4. | All users of the Site acknowledge that the above fees may be paid and retained and that they are not refundable in any circumstances. |
| 9.5. | By virtue of the Contracts (Rights of Third Parties) Act 1999, the rights of advisers to recover success fees are intended to be enforceable directly against the persons seeking to raise funds. |
10. DURATION AND TERMINATION
| 10.1. | You will be able to use the Service upon: |
| (a) | completing the appropriate registration form and procedures (including accepting these terms and conditions); |
| (b) | if you are seeking to raise capital, on payment to us of any required fee; and |
| (c) | if you are an investor seeking access to business plans and similar documents, certifying yourself as a Sophisticated Investor and/or as a High Net Worth Individual. |
| 10.2. | We may terminate your use of the Service without notice if in our opinion: |
| (a) | you are in breach of any of the terms of this agreement (except for a trivial breach remedied within 7 days of its occurrence); or |
| (b) | you do or fail to do any act which jeopardises the continuance of the Service. |
11. REGULATION
| 11.1. | We do not give investment advice but to the extent we arrange deals in investments we are an exempt person by virtue of the FSMA (Exemption) Order 2001. |
| 11.2. | Any communication we make which amounts to an invitation or inducement to engage in investment activity: |
| (a) | is a non-real time communication or a solicited real time communication; |
| (b) | is made or directed by us for the purpose of our business of arranging deals in investments which is a regulated activity in relation to which we are an exempt person. |
| 11.3. | The financial promotion restriction set out in section 21(1) of FSMA accordingly does not apply to any such communication by virtue of article 17 of the Financial Promotion Order. |
| 11.4. | If you are attempting to raise capital the Information you enter on the Site must not constitute an offer of transferable securities to the public unless you comply with the law relating to a prospectus or one of the exemptions apply such as you are not raising more than Euro 2.5m (approx £1.7m) or the minimum subscription is not less than Euro 50,000. |
| 11.5. | Private limited companies must not breach the prohibition on them on offering shares to the public. Information put on the Site relating to a private limited company must not contain an application form or other mechanism that could be construed as an offer or invitation to make an offer. Users of our services need to take their own advice but we understand that if the matter came before a court the court would probably make an objective judgment from the point of view of a reasonable investor as to whether the business plan contains sufficient information to enable an investor to subscribe for the shares. The court would take into account: the extent of the description of the securities and the business and its prospects; and the existence of a price for the securities or at least a price range. We therefore suggest it is always safer to err on the side of caution and use the business plan to gain the attention of a potential investor so that negotiations can begin on price and other detailed matters as a second step on a one to one basis. Any subsequent offer or invitation by the private limited company is then tailored to comply with S.756 Companies Act 2006 which inter alia provides: |
| "(2) | An offer is not regarded as an offer to the public if it can properly be regarded, in all the circumstances, as - |
| (a) | not being calculated to result, directly or indirectly, in securities of the company becoming available to persons other than those receiving the offer; or |
| (b) | otherwise being a private concern of the person receiving it and the person making it." |
12. RISK WARNINGS
| 12.1. | The Service and the Information are only for your general information and use and are not intended to address your particular requirements. |
| 12.2. | You bear all risks from any use or results of using (or refraining to use) the Information or the Service. We make no warranty or representation as to the accuracy and reliability of the Information. If you are an investor you must satisfy yourself as to the accuracy of the Information and as to the worth of any investment proposal. |
| 12.3. | We do not accept responsibility whether in contract or tort for any losses, costs or damages resulting from or related to use of or inability to use the Service or any Information to the fullest extent to which such liability may be excluded or avoided by law and in no event shall we be liable to you for lost profits or for indirect, incidental, special, punitive or consequential damages arising out of or in relation to the Site, the Service or the Information. |
| 12.4. | Investments in small and medium sized investments are not suitable for everyone. If you have any doubt whether a particular investment is suitable for you; you should obtain expert advice. Such investments may go down in value as well as up and your entire investment may be lost. |
| 12.5. | It may be difficult to sell or realise the investment at a reasonable price or any price or to obtain reliable information about its value or the extent of the risks to which it is exposed. |
| 12.6. | You should carefully consider whether an investment is suitable for you in the light of your personal circumstances and financial resources available to you. |
| 12.7. | The value of any investments is variable and past performance is not necessarily a guide to future performance. |
| 12.8. | For further information and investment warnings, you may wish to consult the FSA website, on www.fsa.gov.uk. |
13. INDEMNITY
| 13.1. | You irrevocably indemnify us against |
| (a) | any and all losses, damages and costs suffered or incurred as a result of you using (or refraining to use) the Service or relying on Information entered on the Site; and |
| (b) | against any liability (including legal costs and expenses) which we may incur as a result of you putting Information on the Site. |
14. COMPLAINTS
If you have any complaint about our performance under this agreement you should direct that complaint to complaints@fisma.org and we will investigate the nature of your complaint and try to resolve it.
15. CONFLICTS OF INTEREST
Your attention is drawn to the fact that we, our employees or our officers may have an interest, relationship or arrangement that is material in relation to the investment or transaction offered in the course of the Service or which could give rise to a conflict of interest and you agree that we shall not be required to disclose it to you and that there will be no obligation to account to you for any profit.
16. HYPERTEXT LINKS
| 16.1. | We provide hypertext links to sites on the internet which are operated by other people. |
| 16.2. | We are not responsible for the content of any other site including any site through which you may have gained access to this Site or to which you may gain access to from this Site. We do not accept any liability in connection with any linked sites. |
17. USER RESTRICTIONS
| 17.1. | The Service is intended to promote industrial, commercial and enterprise activity in the UK and is designed to comply with UK legislation. Persons from outside the UK should only use this website if they are satisfied that to do so complies with legislation of their country of residence. In particular, no securities or services are being offered in the United States, Canada or Australia or to persons from those countries and anyone found accessing this Site from any of those countries will be excluded. Companies raising capital and/or their advisers should note these restrictions and take appropriate action if contacted by investors who are non-UK residents. |
| 17.2. | Companies not from the UK may be allowed to use the Site providing they are advised by UK solicitors. |
| 17.3. | The Service is only available to persons who are 18 years old or over. |
18. ASSIGNMENT
This agreement and any rights of access (password and username) to the Service provided to you may not be assigned, licensed or otherwise transferred by you to any other person without our prior written consent.
19. COMPLETE AGREEMENT
| 19.1. | These terms and conditions together with the duly completed registration form, price details and payment method instructions as available on the Site, if any, are the whole agreement between you and us. |
| 19.2. | You acknowledge that you have not entered into this agreement in reliance upon any warranty or representation made by us. |
| 19.3. | We may from time to time make changes to these terms and conditions and payment rates which will be set out on the Site. Unless you inform us that you object to the changes within 14 days of the changes appearing on the Site, you will be deemed to accept the changes. Any changes we are advised to make by our professional advisers for regulatory or statutory reasons will come into force immediately the revised terms and conditions appear on the Site. |
20. GENERAL
| 20.1. | Copyright and all other intellectual property rights subsisting in the database accessible via the Service and layout of Site are owned by us. |
| 20.2. | Any notice from us to you may be delivered by e-mail or post to you at your last known address. Evidence of posting (either electronically or otherwise) shall be taken as evidence of delivery. |
| 20.3. | These terms and conditions shall be administered by the board of directors of FiSMA Limited and governed by, and construed in accordance with, English law and the parties submit to the exclusive jurisdiction of the English Courts. The decision of the board of directors of FiSMA Limited as to any matter, question or dispute arising from the terms hereof, shall be final and conclusive and binding on all users using the Site and all persons seeking to raise money through the Site. |
| 20.4. | In these terms and conditions (except where the context otherwise requires): |
| (a) | use of the singular includes the plural and vice versa; |
| (b) | use of any gender includes the other genders; |
| (c) | any reference to "persons" includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality); and |
| (d) | any reference to a statute, statutory provision or subordinate legislation ("legislation") shall (except where the context otherwise requires) be construed as referring to: |
| i. | i. such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation; and |
| ii. | ii. any former legislation which it re-enacts, consolidates or enacts in rewritten form. |
| 20.5. | Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. |
| 20.6. | If any term of these terms and conditions is held to be illegal or unenforceable the validity and enforceability of the remainder shall continue in full force and effect. The provision in question shall be replaced by a valid and enforceable term which corresponds, so far as possible, with the intent of the original provision. |
| 20.7. | Failure by either party to exercise any right or remedy under these terms and conditions does not constitute a waiver of that right or remedy. |
| 20.8. | All disclaimers, indemnities and exclusions in these terms and conditions shall survive termination of any agreement between us. |
| 20.9. | Neither you nor we shall be held liable for any loss or failure to perform any obligation hereunder due to causes beyond our respective reasonable control. |
| 20.10. | These terms and conditions replace all terms and conditions previously applicable to the provision of the Service. |
| 20.11. | You confirm you have read and understood the full terms and conditions of the Site and agree to comply with them in your use of the Service and if you certify yourself as a Sophisticated Investor or a High Net Worth Individual, or are registered on the Site as an adviser you accept that the contents of promotions and other materials appearing on the Site may not be approved by an Authorised Person. Reliance on such promotions for the purpose of engaging in any investment activity may expose an individual to a significant risk of losing all of the property or other assets invested. |
| 20.12. | Any individual who is in any doubt about an investment to which a communication appearing on the Site relates should consult an Authorised Person specialising in advising on investments of the kind in question. |
| You confirm you have read and understood these terms and conditions and ACCEPT them. |
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