25 October 2020, Sunday

 

1. Terms and definitions

 

Agent - FUNDAUS TRUST AGENT OÜ (a limited liability company duly registered in the Republic of Estonia under the registration number 14810464, having its registered legal address: Harju maakond, Tallinn, Tina tn. 9, Estonia), being a legal entity authorized by the Investor to sign the Loan and the Collateral agreements in its own name, but in the interests of the Investor and represent the Investor in case of the Borrower’s default under the Loan Agreement.

Agent agreement - An agreement entered into the Investor and Agent via the Platform, on the basis of which the Investor authorizes Agent to conclude the Loan agreement and Collateral agreements with the Borrowers in accordance with the Investor’s instructions in the name of the Agent, but in the interests of the Investor.

Agreement - An agreement on use of the Services consisting of these Terms, Loan Application, Special agreements and the Pricelist.

AML legal regulation - Estonian, European Union and International legal acts on anti-money laundering and counter-terrorism financing.

AML Policy - Operator’s Anti-money laundering and counter-terrorism financing policy.

Assignee - A person whom the Lender has assigned its Claim rights to the Borrower and to the Pledgor.

Assignment - A transfer of the Claim rights made by the Assignor to the Assignee.

Assignor - The Lender.

Beneficiary - A natural person who, taking advantage of their influence, makes a transaction, act, action, operation or step or otherwise exercises control over a transaction, act, action, operation or step or over another person and in whose interests or favour or on whose account a transaction or act, action, operation or step is made.

In the case of a legal entity: the natural person who ultimately owns or controls legal entity through direct or indirect ownership of a sufficient percentage of the shares - shareholding of 25 per cent plus one share or an ownership interest of more than 25 per cent, or voting rights or ownership interest in that person, including through bearer shareholdings, or through control via other means;

In the case of trust, civil law partnership, community or legal arrangement: the natural person who controls the association via direct or indirect ownership or otherwise and is such associations’: a) settlor or person who has handed over property to the asset pool; b) trustee or manager or possessor of the property; c) person ensuring and controlling the preservation of property, where such person has been appointed; d) the beneficiary, or where the beneficiary or beneficiaries have yet to be determined, the class of persons in whose main interest such association is set up or operates;

Where the natural person cannot be identified and there is no doubt that such person exists or where there are doubts as to whether the identified person is a beneficial owner, the natural person who holds the position of a senior managing official or member or members of the management board may be deemed or designated as a beneficial owner.

Borrower - A person, which using the Services applies for and receives the Loan in accordance with the conditions of the Loan Agreement and these Terms.

Borrower’s bank account - A Borrower’s account in a banking or payment institution.

Claim Rights - Rights of claim to the Borrower arising from the Loan Agreement.

Collateral - Any security provided by the Borrower or the Pledgor in order to secure the Borrower’s liabilities arising from the Loan agreement.

Collateral agreement - A collateral agreement entered into between the owner of the pledged property as the Pledgor and the Agent as the Pledgee on Pledge of property in order to secure the Borrower’s liabilities under the Loan Agreement.

Completion term - Term determined for collection of the funds via the Platform in amount of the Loan required by the Borrower in its Loan application for financing of its Project.

Event of Default - Borrower’s failure to fulfil the liabilities arising from the Loan agreement or other agreements related to the Loan.

FIU - Estonian Financial Intelligence Unit.

Force-majeure circumstances - Circumstances beyond the control of the Party, which make fulfilment of obligations arising from this Agreement impossible or illegal.

GDPR - Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

Interest - Amount payable by the Borrower to the Lender for use of the borrowed funds (the Loan) at the rate agreed in the Loan Agreement.

Investor - An individual or legal entity, who has passed registration on the Platform, has been identified and accepted by the Operator and receives the Services – uses the possibility to lend the funds to the Borrowers.

KIIS - Key Investment Information Sheet – questionnaire on the Borrower and the Project, containing the data, which is a part of the Offer and is disclosed to the Investors by publishing next to the Project description on the Website.

KYC - Process of identification, due diligence and analysis of the Borrower in accordance with the AML Policy and internal procedures of the Operator and requirements of the Law.

Law - Any law applicable to the Services, including to the relationship between the Operator and the Borrower or third parties involved in a process of provision of the Services.

Lender - The person named as the lender in the Loan agreement, who may be either the Investor itself or the Agent.

Loan - The total amount lent to the Borrower within one Project on the basis of the Loan Agreement.

Loan Application - Application in a form approved by the Operator made by the Borrower for funding of its project.

Loan Agreement - A loan agreement entered into by the Investor or the Agent as the Lender and the Borrower, on the basis of which the Loan shall be disbursed to the Borrower for the purpose of financing the Project.

Maximum amount of the Pool - Amount of the Loan the Borrower has applied for.

Member State - A European Union or European Economic area state, including United Kingdom and Norway.

Minimal target - A minimal amount of the Loan determined by the Borrower, which it agrees to borrow on the basis of the Loan agreement if the Maximum amount of the Pool is not reached.

Offer - Offer of funding the Project placed on the Platform, available for the Investors on the Website and consisting of the project details, description, KIIS, pictures, related documents and other information.

Operator - FUNDAUS OÜ (a limited liability company duly registered with 14643807 in the Republic of Estonia under the registration number 14643807, registered legal address: Harju maakond, Tallinn, Nomme linnaosa, Tina tn. 9, 10126, Estonia). More details and contact information is available on the Website.

Participation - The part of the Loan amount paid into the Pool by each Investor.

Platform - An electronic system for provision of the Services available for the use on the Website.

Pledgee - The Lender or the Assignee.

Pledgor - A person, which pledges its property in order to secure the Borrower’s liabilities arising from the Loan Agreement.

Pool - Amount of funds (either an entire Loan amount or the Minimal target if specified) being a target for collection via the Platform on the Segregated account for further lending to the Borrower on the basis of the Loan agreement.

Pricelist - Operator’s pricelist for the Services.

Privacy policy - Operator’s policy on data processing and protection based on the GDPR and requirements of the Law.

Project - Borrower’s business activities related to real estate development projects or business development projects, which is offered by the Borrower for funding on the Platform.

Questionnaire - A form for filling up the Borrower’s data and information required for the KYC and acceptance of the Borrower in accordance with the internal procedures of the Operator.

Referral system - A remuneration system established by the Operator, which offers the person who promotes the Services to receive an income in a form of percentage of the funds invested by the Investors attracted by this person.

Segregated account - Operator’s account used for settlements between the Investors and the Borrowers within the use of the Services via the Platform and totally separated from Operator’s operating account.

Services - Crowdfunding services that are provided by the Operator, which connect via the Platform those who can give, lend or invest money (the Investors) with those who need financing for a specific Project (the Borrowers).

Special agreements - Any agreements entered into the Operator and the Borrower and related to the Services.

Termination notice - A notice on termination of agreements concluded with the Borrower given to the Borrower in accordance with these Terms and conditions of the respective agreements.

Terms - These terms and conditions for Borrowers.

Website - www.fundaus.com.

 

 2. General Terms

 

2.1. Preamble and start of relationship

2.1.1. These Terms regulate use of the Services provided by the Operator via the Website fundaus.com

2.1.2. The Terms are the part of the Agreement for use of the Services between the Borrower and the Operator, which consists of these Terms, the Loan Application, Special agreements (if any) and the Platform’s Pricelist. The conditions of the use of the Services, which are not included in these Terms, are defined in additional manuals, instructions and FAQs placed on the Website and shall also be binding and observed by the Borrower.

2.1.3. The Borrower enters into the Agreement by submitting its Loan Application to the Operator via the Website or in other way and certifying its consent to these Terms and other Operator’s documents. The Operator enters into the Agreement by acceptance of the Borrower’s Loan application resulted in a placement of the Project and the Offer on the Website and made after completion of KYC procedure and general assessment of the Borrower and its Project (and the Collateral and its providers where applicable) in accordance with the Operator’s AML Policy, internal procedures and requirements of the Law.

2.1.4. The obligatory preliminary condition for the entrance into the Agreement is an acceptance of the Operator’s AML Policy, Privacy policy and Complaint handling policy by the Borrower. These documents are available on the Website. The Borrower accepts them upon submission of the Loan application.

2.1.5. With commencing the use of the Services, the Borrower confirms that it has read the Terms and the above-mentioned documents, understood them and agrees to them. With commencement of the use of the Services the Parties understand the submission of the first Loan application by the Borrower.

2.1.6. These Terms also regulate relationship and mutual obligations between the Parties and the Agent.

2.1.7. These Terms do not cover and regulate the relationship between the Operator and the Investors, which are regulated by separate documents.

2.1.8. The relationship between the Operator and the Borrower are limited with placing the offers of funding the Borrower’s Projects on the basis of these Terms and in accordance with the Operator’s documents. The Operator shall not be considered as the Investor’s or the Borrower’s authorized person. All the actions on the Platform are made by the Investor and the Borrower independently and fully reflect their will. The Operator in this lending relationship may be considered as a technical vehicle for realization of the Investors’ and Borrowers’ activities.

 

2.2. Limitation of liability

2.2.1. The Operator’s liability is limited with the Operator’s registered statutory capital.

2.2.2. Operator is not a party in the loan transactions and does not give or make any recommendations, advices, guarantees, underwritings, undertakings or other promises on its own behalf in respect of possibility of the Borrowers to perform their contractual obligations or regarding the quality or future profitability of the projects.

2.2.3. All the information on the Projects provided on the Website fully reflects the Borrower’s certifications, guarantees and undertakings without an additional advertisement from the Operator’s side.

2.2.4. Operator does not provide payment services or any other except the Services – provision of a marketplace for establishment of relationship between the Investors and the Borrowers.

2.2.5. In addition to the Services the Operator performs an administrative function in the execution and performance by the Parties of Loan Agreements and the Pledge Agreements for the lending and securing purposes.

2.2.6. When collecting Investors’ funds into the Pool the Operator provides its Segregated account for this purpose and transfers the Loan amount to the Borrower in accordance with these Terms and the agreements entered into by the Borrower related to that Loan. The Operator keeps its right to reject the disbursement of the Loan to the Borrower without any explanations given to the Borrower if in the Operator’s opinion this disbursement may in any way pose a threat to its interests or the interests of the Agent or Investors or if the funding of the Borrower’s Project does not comply with the Operator’s business policy anymore. The Operator shall not be liable for any losses of such rejection.

2.2.7. When collecting any amounts of funds owing by a Borrower, the Operator and/or the Agent acts at its own discretion on the basis of what the Operator considers to be, and in the Operator’s experience is, in the best interests of the Investors.

2.2.8. Among other things, the Operator and the Agent are not liable for:

2.2.8.1. the performance of Investors’ obligations;

2.2.8.2. the trueness or accuracy of information and/or confirmation(s) published or provided by the Borrower to the Platform / Website or any Loan Agreement and no warranty or representation is made by either the Operator or the Agent in respect of the same. The above specified exclusion of liability shall also apply to any details and other information published on the Website in respect of the Projects and the Borrowers;

2.2.8.3. any disruptions or impediments that may occur in the operation of the banking or payment institution holding the Investor’s funds or processing the transactions for use of the Platform services, including any losses which may directly or indirectly be incurred as a result of the insolvency or moratorium of such institution or any other similar event;

2.2.8.4. losses incurred as a result of any act or failure to act by the third parties whose economic or professional activity includes the collection of debts and the provision of related services if such persons are used for enforcement of the Investor’s rights against the Borrowers;

2.2.8.5. the scope, content, suitability and enforceability of contracts and other legal documents used on the Platform, including those used for the carrying out of transactions of lending;

2.2.8.6. any bugs or disruptions that occur in the IT systems of the Operator;

2.2.8.7. the trueness and accuracy of any forecasts, including financial indicators and forecasts of any project, published on the Platform and no warranty or representation is made by either the Operator or the Agent in respect of the same;

2.2.8.8. any circumstances that derive from or depend on the identity of a Borrower or the Investor;

2.2.8.9. any non-patrimonial damages, loss of profit or other indirect losses, or other damages caused as a result of its conduct other than intentional misconduct;

2.2.8.10. the losses incurred as a result of malfunction or technical equipment of means of communication, Website maintenance etc.;

2.2.8.11. the losses incurred by the Borrower as a result of non-observance or violation of these Terms;

2.2.8.12. possible liabilities resulting from the Law that may arise for the Borrower in relation to the Services, used by the Borrower.

2.2.9. Both the Parties – the Operator and the Borrower – are not liable for improper fulfilment of their liabilities arising from the Agreement if the purpose is Force majeure The Party whose liabilities cannot be fulfilled in the result of the Force majeure circumstances shall notify the other Party as soon as it becomes possible. If the Force majeure circumstances last longer than 3 months this Agreement shall be terminated provided the Parties has fulfilled all the mutual obligations and obligations to the third Parties arising from this Agreement and other agreements related to the Services, that are not impacted by the Force majeure circumstances. The Agreement can also be amended by mutual agreement of the Parties by excluding the impossible conditions and leaving the other conditions in force.

 

3. Borrower identification, assessment and acceptance

 

3.1. Start of the relationship

3.1.1.The Borrower shall apply for the start of the relationship by filling up the application on the Website or by contacting the Operator in other way. This application is preliminary and shall be made for launch of communication between the Borrower and the Operator and shall not be considered as the Loan application.

3.1.2. The Operator will contact the Borrower and organize meeting for discussing the details related to the Loan required. Optionally, the short list of questions may be sent to the Borrower’s email in order to obtain the basic information on the Borrower’s needs. Based on this basic information received from the Borrower the Operator preliminary decides whether the Borrower and its Project qualify for the Services and therefore may be further assessed in accordance with the Operator’s procedures. The Operator is entitled to reject provision of the Services to the Borrower without providing any explanations.

3.1.3. If the Operator agrees to start the Borrower’s assessment procedure, the Loan application shall be filled up, signed and submitted by the Borrower to the Operator accompanied by the additional documents requested by the Operator. The Operator may preliminarily request, at least, to fill up the Questionnaire, the KIIS and to provide the documents for the KYC procedure and assessment of the Borrower and the Project.

3.1.4. By signing the Loan application, the Borrower confirms its acceptance to these terms, the Operator’s AML Policy, Privacy policy, Complaint handling policy and other Operator’s documents regulating provision of the Services. From the moment of signing of the Loan application this Agreement shall be considered as concluded and is binding for the Borrower together with above mentioned Operator’s documents. The Loan application shall be signed by the duly authorized representative of the Borrower either by hand or using the legal electronic signature.

3.1.5. The information and documents required by the Operator for the assessment of the Borrower and the Project shall contain, at least, following information:

- necessary for the KYC procedure of the Borrower;

- required for assessment of the reputation and financial state of the Borrower;

- required for assessment of the legal capacity of the Borrower and its representatives related to the Project and borrowing issues;

- information on the Project, including business plan and other required data;

- information on the Collateral if such is being provided;

- information on the Pledgor if it is different from the Borrower for the KYC and assessment purposes;

- information for completion of the KIIS;

- other information if such is requested by the Operator in order to assess the Borrower and the Project.

3.1.6. The Operator may apply a fee for assessment of the Borrower and its Project in accordance with the Pricelist. The Borrower may pass the financial and legal assessment made by third party (professional) accepted by the Operator. In such situation, if the Borrower has paid for the assessment process performed by this third party (previously accepted by the Operator), the Operator, on its own discretion, may reduce amount of the fee payable for the assessment of the Borrower to the Operator. The Operator takes into account the decision (legal opinion) provided by that specialist, but is not obliged to follow it and keeps its rights to apply additional assessment procedures to the Borrower.

 

3.2. KYC rules and requirements

3.2.1. Upon the submission of the Loan application Borrower confirms to Platform that it meets and will meet the following requirements to the Borrower throughout the entire period of use of the Services:

3.2.1.1. Is a legal entity registered with the relevant registry in the Member state;

3.2.1.2. The Borrower has the Borrower’s bank account opened with a licensed banking or payment institution of the Member state;

3.2.1.3. No insolvency proceedings are declared in relation to the Investor and no signs of insolvency of the Borrower have been revealed;

3.2.1.4. No restrictions of legal capability for the Borrower as a legal person have been imposed and no such restrictions exist;

3.2.1.5. The representatives of the Borrower and the representative of the Pledgors have and will have all the necessary powers, permissions, acceptances from the Borrower’s and the Pledgor’s companies for entrance into this agreement, loan and collateral agreements and other agreements related to the Services and for due fulfilment of the obligations arising theirof.

3.2.2. The following information and documentation shall be submitted in original[1] by the Borrower who is a legal entity for the Identification additionally to the Questionnaire:

- Registry card, registration certificate or equivalent document of the relevant register;

- Document confirming a legal (registered) address;

- Memorandum and Articles of Association or relevant document;

- Document on director or management board structure;

- Document on ownership structure;

- Relevant document equivalent with aforementioned documents, which contains necessary identification data (company register statement) and replaces above mentioned documents;

- Representing authority identity card or passport;

- Beneficiary identity card or passport.

Additional documents are requested in the following cases:

- Power of attorney or other right and scope of representation proving document and identity card or passport of authorized person - in the case of representation;

- Legal entity and its Beneficiary’s Tax residence document - if it is not possible to detect tax residence country from another available information.

3.2.3. Upon the entrance into the Agreement the Borrower gives an instruction to the Operator to obtain and process the personal data related to the Borrower and necessary for the KYC and for preparation of provision of the Services to it. The Borrower confirms that it acknowledges and agrees (where is necessary) that the Operator processes and keeps personal data of its representatives, shareholders, Beneficiaries and other related individuals, requests their personal data from third persons, data bases and registers where it is possible and transfers its personal data to the third parties for the KYC procedures in accordance with requirements of the AML legal regulation and for other legally based purposes and in order to fulfill the Agreement and provide the Services. All the Operator’s actions related to the Borrower’s personal data are regulated by the Operator’s Privacy policy, which the Borrower is agreed to. By accepting the Operator’s Privacy policy, it certifies that all the related persons whose personal data are disclosed by the Borrower to the Operator have duly authorized the Borrower for such disclosure and the Borrower fully indemnifies the Operator against any claims from these persons in this respect.

3.2.4. The Borrower understands and agrees that negative results of the KYC made by the Operator are fully sufficient ground for rejection of its Loan application by the Operator. The Operator is not obliged to name the reason of such rejection to the Borrower.

 

3.3. Reputation assessment

3.3.1. The Operator makes a research and assessment of the Borrowers reputation using the available public sources of information and the information provided by the Borrower on the Operator’s request. The Borrower authorizes the Operator to request and obtain any necessary information from the Borrower and the third persons in order to make the Borrower’s “portrait”, which will be taking into account upon making decision on acceptance of the Borrower’s Loan application.

3.3.2. The Borrower understands and agrees that negative information on the Borrower, its business, related persons or its Project is fully sufficient ground for rejection of its Loan application by the Operator. The Operator is not obliged to name the reason of such rejection to the Borrower.

 

3.4. Financial state assessment

3.4.1. The credit scoring system is developed and approved by the Operator in order to access the Borrower’s financial state and creditworthiness.

3.4.2. The Borrower undertakes to provide any documents and information requested by the Operator for credit scoring purposes, including, but not limited to: annual financial statement(s) with appendices, operating accounting data of the Borrower and associated companies if relevant and (or necessary), data on the Borrower and associated persons from Credit Register of the Central Bank (or equivalent) and commercial debtors’ registers if necessary.

3.4.3. The Borrower understands and agrees that negative results of the credit scoring made by the Operator are fully sufficient ground for rejection of its Loan application by the Operator. The Operator is not obliged to name the reason of such rejection to the Borrower.

 

3.5. Project assessment

3.5.1. The Operator makes in-depth analysis of the Project based on the information and documents provided by the Borrower on the Operator’s request and obtained by the Operator independently.

3.5.2. The Borrower agrees that the Operator is entitled to request the legal opinion of the Project and the jurisdiction where it is being developed; valuation of the Project made by the valuator accepted by the Operator and the insurance of the risks related to the Project. The Operator is entitled to order these documents on behalf of the Borrower and pay for it. The Borrower undertakes to cover all the expanses made by the Operator for the purpose of assessment of the Project. The Borrower authorizes the Operator to deduct the amounts of these expenses if they are paid by the Operator or the Agent from any payments due to the Borrower, including the Loan amount.

3.5.3. The Borrower understands and agrees that negative results of the Project assessment made by the Operator are fully sufficient ground for rejection of its Loan application by the Operator. The Operator is not obliged to name the reason of such rejection to the Borrower.

 

3.6. Assessment of the legal capacity

3.6.1. The Operator checks the legal capacity of the Borrower, makes legal analysis of the Borrower’s documents related to its corporate issues, authorizations, ownership rights and other matters.

3.6.2. The Operator is entitled to obtain a legal opinion on the registration of the Collateral, protection of the Operator’s or Investors interests and on the other legal matters if the Operator considers it necessary for full assessment of the Borrower and its Project. The Borrower agrees to cover all the expenses related to the obtaining the legal opinion and does hereby authorize the Operator to withhold the amount of these expenses from any amounts payable to the Borrower in relation to the Services (including the Loan amount).

3.6.3. The Borrower understands and agrees that negative results of the assessment of the legal capacity made by the Operator are fully sufficient ground for rejection of its Loan application by the Operator. The Operator is not obliged to name the reason of such rejection to the Borrower.

 

3.7. Collateral and Pledgor’s assessment

3.7.1. The Operator makes an assessment of the Collateral offered by the Borrower in order to secure its liabilities arising from the Loan agreement.

3.7.2. The Operator considers whether the Collateral is sufficient, legal, free of encumbrances, available for pledging and liquid. The costs and timing required for registration of the Collateral and for enforcement of the Pledgee’s rights also is being assessed.

3.7.3. If the Pledgor is not the Borrower the additional overall assessment of the Pledgor shall be made. The Borrower does hereby undertake to provide all the information on the Pledgor to the Operator for purpose of such assessment including organization of the personal meeting with the Pledgor or its representatives.

3.7.4. If the value of the Collateral is not sufficient or is decreased the Operator is entitled and the Borrower is obliged to provide the additional Collateral.

3.7.5. The Borrower agrees that the Operator is entitled to request the legal opinion of the Collateral and the jurisdiction where it is situated (based); valuation of the Collateral made by the valuator accepted by the Operator and the insurance of the risks related to the Collateral. The Borrower undertakes to cover all the expenses related to the above. The Operator is also entitled to order these documents on behalf of the Borrower and pay for them with further right to cover its expenses as it is stated in the cl.6.1. of these Terms.

3.7.6. The Borrower understands and agrees that negative results of the assessment of the Collateral or of the Pledgor or non-provision of the additional Collateral of the Operator’s request are fully sufficient ground for rejection of its Loan application by the Operator. The Operator is not obliged to name the reason of such rejection to the Borrower.

 

 3.8. Borrower’s acceptance or rejection by the Operator

3.8.1. Based on the results of the assessment of the Borrower and the Project the Operator makes a decision whether to accept or to reject the Loan application.

3.8.2. If the Borrower’s Loan application is rejected it will be notified accordingly by the means of communication named by the Borrower in its Loan application.

3.8.3. If the Borrower’s Loan application is accepted by the Operator the Offer shall be executed for placement on the Website accompanied by the project of a Loan agreement and Collateral agreements prepared and agreed by the Parties. The Offer and the projects of the agreements will be available to the Investors on the Project’s page on the Website together with other Special agreements, which may be agreed and entered into in relation of the Loan or the Services.

3.8.4. The Offer with the projects of the related agreements shall be placed on the Website within 5 (five) business days from the moment of their acceptance by the Borrower.

 

4. Loan agreement

 

4.1. The Loan agreement formally shall consist of two parts – General Terms and Special Terms.

4.1.1. The General terms shall contain the general agreements between the Lender and the Borrower and shall be disclosed to the Investors on the Website next to the Offer. Once the General Terms are agreed by the Borrower and the Operator, they shall be made available for the Investors. The General terms, among other information, shall include the Loan amount and – where it is applicable – Minimal target.

4.1.2. The Special Terms may contain the following specific information and conditions, which may become disclosed only to the actual Investors who invested in the Project:

- Number, date and Estonian time of the Loan Agreement;

- Borrower’s data;

- Investor’s data (if the Investor is acting directly as the Lender);

- Agent data (if it is acting as the Lender on the basis of the Agent agreement);

- Data of the Representatives of the Parties;

- Purpose of the Loan - a name and / or ID of the Project for funding;

- Loan amount (the entire Loan amount);

- Maturity date;

- Loan interest rate and payment dates;

- The Collateral data.

4.2. The Loan agreement and the Collateral agreements (if any) shall be prepared by the Operator based on the Loan application and provided to the Borrower for consideration. The data (the Borrower’s requirements in respect of the Loan) submitted by the Borrower in its Loan application, provided that the Operator has accepted them, may be included into the Special terms.

4.3. The Loan agreement, essentially, consists from the Borrower’s offer to fund its Project in the entire amount (executed in a form of the Project description based on the Borrower’s Loan application and published on the Website), the Investors’ counter-offers to fund the Project with their chosen amounts (reflected in the form of the Investors’ actions made for investing via the Platform) and the Borrower’s acceptance for the funding in the Investors’ offered amounts (reflected in signing of the Loan agreement for the entire Loan amount).

4.4. The Loan agreement may be signed either by the Investors directly or by the Agent in the name of the Agent, but in the interests of the Investors. If the agreements are signed by the Investors – the only electronic form of the document (electronic signatures or online accepts of the Investors) shall be available. The Borrower agrees to accept and sign the Loan agreement without obtaining the original copy. If the Investors do sign the Loan agreements directly – the loan amounts shall be equal to their Participation amounts made via the Platform. If the Loan agreement is signed by the Agent – one Loan agreement for the entire Loan amount shall be executed in the written form and signed by the Agent and the Borrower.

4.5. If the Loan agreement contains the Borrower’s obligations to provide the Collateral in order to secure its obligations, the wording of the Collateral agreements shall be agreed by the Borrower and the Operator and shall be made available for acceptance of the Investors upon the investing. The Agent shall sign the Collateral agreements as the Pledgee. The Collateral shall be registered in favor of the Agent a trustee of the Investors.

 

5. Project funding

 

5.1. The Investors shall invest their funds via the Platform to fund the chosen Project.

5.2. The draft Loan agreement and Collateral agreements (where applicable) shall be accepted by the Investors upon investing.

5.3. Once the Pool is completed or the Minimal target is reached the respective notice shall be given to the Borrower by the Operator together with the request to sign the Loan agreement and the Collateral agreements (if any). The Loan agreement shall be concluded stating the actual amount of the Loan, which may differ from the amount specified in the Loan application. If only the Minimal target is reached – it shall be considered as the Loan amount.

5.4. If the Pool is not completed and the Minimal target (where applicable) is not reached within the Completion term, the collected funds shall be returned to the investors in accordance with their Participation amounts and the Borrower’s Loan application shall be considered rejected without any liability of the Operator in this respect.

 

6. Collateral

 

6.1. If the Collateral shall be provided by the Borrower this shall be done prior to the Loan disbursement and all the expenses related to the provision of the Collateral shall be covered by the Borrower (including, but not limited, registration fees, notary and lawyer fees, insurance premiums, fees for obtaining of legal opinion of valuation in respect of the Collateral and any other expenses, which shall be necessary in the Operator’s point of view or required by the Law). The Borrower authorizes the Operator to deduct the amounts of these expenses if they are paid by the Operator or the Agent from any payments due to the Borrower, including the Loan amount.

6.2. The Borrower is obliged to provide the original documents, certifying the registration of the Collateral, to the Operator prior to the Loan disbursement. If the Operator, Agent or the Investor agrees to disburse the Loan amount to the Borrower before the Collateral is provided, the Borrower shall provide the Collateral within the term specified by the Operator or the Agent, otherwise the event of default will be considered to occur.

 

7. Loan disbursement

 

7.1. The Loan amount shall be disbursed to the Borrower’s bank account within 3 (three) business days after all the preliminary conditions stated in the Loan agreement and the Collateral agreements are duly fulfilled by the Borrower and the Pledgor and a fee for the Operator’s services stated in the Pricelist is duly paid by the Borrower to the Operator.

7.2. The Loan amount shall be considered disbursed to the Borrower at the moment the Operator’s account is credited with the respective amount and the notice of the Loan disbursement is given to the Borrower. The Operator is not liable for the time of the bank transfer of the Loan amount.

7.3. The amounts, which shall be paid by the Borrower to the Operator or to the Agent, may be withheld by the Operator from the Loan amount upon the disbursement. If in this situation the amount received by the Borrower is less than the Loan amount the Loan anyway shall be considered as disbursed in full and the Borrower is liable for the entire Loan amount.

7.4. The Loan shall be disbursed to the Borrower in the currency, in which the investments are made by the Investors. The currency of the Loan shall be Euro, unless in the Loan agreement is agreed differently.

 

8. Borrower’s recall of the Loan application

 

8.1. If the Borrower recalls the Loan application after it is accepted by the Operator but before the Offer is placed on the Website it shall pay the fees for processing the Loan application and for the assessment made by the Operator in accordance with the Pricelist or in amount agreed by the Parties and cover all the expenses made by the Operator in respect of the Borrower and its Project based on the Loan application. The amounts of fees paid by the Borrower to the Operator in advance will not be repaid to the Borrower.

8.2. If the Borrower recalls the Loan application after the Offer based on it is published on the Website it shall be considered as the recall of the Offer by the Borrower. In this situation the Borrower additionally to the obligations mentioned above in the cl.8.1. of the Terms shall pay a penalty amounting to 1% (one percent) of the Loan amount to the Operator and indemnify it against all the possible Investors’ or third parties’ claims, complaints, expenses and losses related to the recall of the Offer. The Operator is entitled to require a payment of a guarantee deposit in amount specified hereabove from the Borrower before the placement of the Offer. In such a case, if the Borrower fulfils its obligations related to the Loan disbursement, the Operator reduces its fee for the Services for the amount of this guarantee deposit.

8.3. The inability to disburse the Loan within the term stated in the respective Loan agreement because of the Borrower’s or Pledgors fail to provide the required Collateral or to fulfill other preliminary conditions for the Loan disbursement shall be considered as the Borrower’s recall of the Loan application and have the consequences as prescribed in the cl.8.2. of the Terms. The term for the Loan disbursement defined in the Loan agreement shall be considered as the date of the Borrower’s recall of the Loan application.

8.4. All the amounts due in accordance with this paragraph 8 the Borrower shall pay to the Operator’s bank account within 5 (five) business days from the date when the notice of the recall of the Loan application has been given by the Borrower to the Operator.

 

9. Borrower’s obligations arising from the Loan agreement

 

9.1. Payment of Interest

9.1. The Borrower shall pay the Interest to the Lender at the rate agreed in the Loan agreement.

9.2. The Interest shall be paid in accordance with conditions of the Loan agreement to the Operator’s bank account.

9.3. The Interest shall be accrued from the date of disbursement of the Loan amount.

9.4. Non-payment or delayed payment of the Interest by the Borrower may result in the Event of default.

9.5. The Lender and the Borrower may agree on the different conditions related to the payment of the Interest and include these conditions in the Loan agreement.

 

9.2. Loan repayment

9.2.1. The Borrower shall repay the Loan in full in the term stated in the Loan agreement. The liabilities of the Borrower shall be considered fulfilled when all the outstanding amounts, including the principal amount of the Loan, Interest, fines, penalties, expenses and other possible amounts due are credited to the Operator’s bank account, as prescribed in the Loan agreement.

9.2.2. The Loan shall be repaid to the Operator’s bank account in the same currency in which it has been disbursed.

9.2.3. The delayed or partial Loan repayment or non-repayment shall be considered as the Event of Default with all the consequences described in the in the Loan agreement.

 

9.3. Other obligations

9.3.1. The Borrower undertakes to fulfil all other obligations arising from the Loan agreement and other agreements related to the Loan in due term and manner.

 

10. Event of default and the consiquences

 

10.1. General rules

10.1.1. The Event of Default situations are described in the Loan agreement. Additionally to the Events of Default defined therein, the following situations may be considered as the Event of Default:

- the Borrower has allowed the change of the shareholders, beneficiaries or members of the executive board of the Borrower without the previous consent of the Lender;

- the Borrower has breached these Terms.

10.1.2. The Borrower shall notify the Operator immediately on its inability or any facts that may result in inability to fulfil its liabilities arising from this Agreement or the Loan agreement or any other agreement entered into between the Borrower and the Operator or the Agent or third persons and related to the Loans and the Services.

10.1.3. If the Event of Default occurs under the Loan agreement the Operator may notify the Borrower on the start of the enforcement procedure. The Borrower is entitled to take measures necessary for repayment of the indebtedness voluntary and reduce possible expenses for the enforcement and debt collection in case of bringing the dispute to the court.

 

10.2. Enforcement of the Pledgee’s rights and debt collection

10.2.1. If the debt repayment is not made voluntary by the Borrower the Agent or its designated person may start the enforcement procedure and execute its Pledgee’s rights if the Loan is secured by the Collateral.

10.2.2. All the funds collected shall be paid to the Agent’s bank account and further distributed between the Investors proportionally to their Participation in the Loan. The amount distributed between the Investors may be reduced by withholding the amounts, which shall be paid by the Borrower to the Operator or to the Agent in accordance with the concluded agreements.

10.2.3. The Borrower understands and agrees that the Investors may keep their Claim rights to the Borrower in amount of insufficient settlement of the Borrower’s indebtedness arising from the Loan agreement. As a result, if the amount collected by the Agent from the Borrower and from the sale of the Collateral within the debt collection procedure is not enough for settlement of the Borrower’s indebtedness arising from the Loan agreement the Borrower shall remain liable for the residual part until the debt is repaid in full.

10.2.4. The Agent is entitled to hire third persons for the enforcement and collection procedure and the Borrower does hereby gives its consent for all the data, including personal data, related to the Borrower, the Loan, the Loan and the Collateral agreement, the Pledgor, the Project and the Collateral, disclosure and transfer to these third persons for this purpose.

10.2.5. All the expenses related to the enforcement and collection procedure shall be settled by the Borrower and included into the amount of the Borrower’s liabilities.

 

10.3. Assignment of the Claim rights

10.3.1. The Lender is entitled to assign in full or partly its Claim rights.

10.3.2. The Assignment may be made before the enforcement and collection procedure are launched, during it or after the collection of the debt if the residual part of the indebtedness still remains due.

10.3.3. The Assignment may be made to the Investors having the Participation in the Loan or to the Operator.

10.3.4. No additional consent shall be necessary from the Borrower for the Assignment.

 

10.4. Sale of Collateral

10.4.1. The Agent is entitled to sell the pledged property (the Collateral) in order to settle the Borrower’s liabilities arising from the Loan agreement.

10.4.2. The Borrower does hereby authorize the Agent for such sale and confirms that no additional authorizations are necessary for that; however, the Borrower undertakes to issue all the powers of attorneys or provide any other necessary support (if required in relation of the sale of the Collateral) on the first request of the Agent or the Operator.

10.4.3. The Operator is entitled to require fulfilment of the Borrower’s liabilities from the Pledgors directly at any time without an obligation to require this from the Borrower first.

 

10.5. Other consequences of the Event of default

10.5.1. The Borrower acknowledges and agrees that the Event of default within one Loan agreement may be considered as the Event of default under all the Loan agreements entered into by the Borrower using the Services (cross-default) and gives the rights to the Lender (s) to request the fulfilment of the liabilities before maturity.

10.5.2. The Event of default gives the rights to the Operator, Agent and the Investors to terminate unilaterally any and all the agreements concluded with the Borrower and the Borrower shall be obliged to repay all the outstanding amounts to the respective creditors within the term stated in their Termination notices.

10.5.3. If any Offers to fund other Borrower’s Projects are placed on the Platform at the moment of the Event of default the Operator may terminate and remove these Offers from the Website. This removal of the Offers shall be considered as the Borrower’s recall of the Loan application and the Operator is entitled, but the Borrower is obliged, to act accordingly as it is prescribed in the cl.8.2. of these Terms.

 

11. Payment of the Operator’s fees

 

11.1. The Borrower shall pay at least the following fees to the Operator (additional fees may be stated in the Pricelist):

- The fee for processing the Loan application;

- The fee for assessment of the Borrower and the Project;

- The fee for fud raising;

- Loan administration fee.

11.2. Amounts of the fees are stated in the Pricelist or may be agreed separately by the Parties.

11.3. The Parties may agree on inclusion, deduction or exclusion of any fees in writing.

11.4. All the fees shall be paid to the Operator’s bank account in advance (before the respective service is provided by the Operator), but, in any case, not later than it is stated in the Operator’s invoice or request for payment if such is made.

11.5. The Borrower shall pay a fine in case of delay of any payments to the Operator in amount of 0.5% (half percent) of the delayed payment amount per each day of the delay.

11.6. The Operator is entitled to deduct any amounts payable to the Borrower with the amount of the outstanding payments to the Operator including the amount of the fine accrued. The Operator is also entitled to suspend or reject providing Services to the Borrower.

11.7. If provision of the Services is in progress the Agreement may be terminated unilaterally by the Operator. The Borrower shall indemnify the Operator and the Agent against any losses in the situation of such termination of the Agreement.

 

12. Provision of information

 

12.1. The Borrower is obliged to provide any information requested by the Operator or required by the Law in order to use the Services. The information shall be provided by the Borrower within 5 (five) business days from the Operator’s request in a form required by the Operator. Regular KYC procedure shall be applied to the Borrower and to the Pledgors in accordance with the Operator’s AML/CTF Policy.

12.2. The Borrower shall also immediately notify the Operator on any situation (obstacles, changes etc.), which may impact fulfillment of its obligations and payment liabilities which arise from the Agreement or the Loan agreement.

12.3. Non-provision or delayed provision of the information or provision of misleading information may result in rejection of provision of the Services or in termination of the Agreement.

12.4. The Borrower shall indemnify the Operator and the Agent against any losses in the situation of such termination of the Agreement.

  

13. Term and termination of the Agreement

 

13.1. This Agreement shall be in force from the moment it is accepted by the Borrower till the moment it is terminated as prescribed below.

13.2. The Borrower and the Operator may terminate this agreement in writing, provided that all the mutual obligations and liabilities are duly fulfilled.

13.3. The Operator is entitled to terminate this Agreement unilaterally with immediate effect in the following situations:

- the Event of default by the Borrower occur under any Loan agreement concluded using the Services;

- the Borrower does not comply with the Operator’s AML Policy;

- the Borrower has violated the Law, these Terms, conditions of the Loan agreement or the Collateral agreement or other Operator’s documents;

- the Operator has suspicions that the Borrower uses the Services for illegal purposes or does not use the Loan for the purpose stipulated in the Loan agreement;

- the Borrower has not used the Services for more than one year and there are no outstanding obligations of the Borrower;

- the Borrower’s Loan application has been rejected in accordance with the Terms, because the Pool is not completed and the Minimal target is not reached, and the Borrower doesn’t have other active Loan applications submitted to the Operator;

- continuing of provision of the Services to the Borrower, at the Operator’s opinion may threaten the Operator’s, the Agent’s or the Investors’ interests;

- provision of the Services to the Borrower becomes impossible for the reasons that the Operator cannot impact.

13.4. The Borrower is entitled to terminate this Agreement unilaterally by giving the 30-days-notice to the Operator, provided all the Borrower’s liabilities are fulfilled and there are no Loan agreements or Offers in force or Pools under completion.

13.5. In any case, this Agreement may not be terminated while there is at least one Loan agreement in force or the Borrower has any outstanding liabilities either to the Operator, or to the Investors, or the Agent, or the third parties related to the Services.

 

14. Communication

 

14.1. The Parties agree that all the notices will be sent by email to their email addresses. The Borrower may use the Operator’s email address: borrower@fundaus.com or info@fundaus.com; the Operator may use the Borrower’s email address provided by the Borrower in its Loan application. The Borrower shall notify the Operator immediately if its email address is changed, otherwise all the Operator’s notices sent to previous email address shall be considered as received by the Borrower.

14.2. The Operator in any case is entitled, on its own discretion, to send the notifications by the means other than email, using the contact data provided by the Borrower, and to request the Borrower to deliver any information, notices or documents in originals via ordinary post or personally.

14.3. The notices shall be considered delivered by the Borrower:

14.3.1. if send by email – after 24 hours;

14.3.2. if sent by post – after 14 (fourteen) days;

14.3.3.    if delivered personally – immediately.

14.4. The Operator may send all the information addressed to the Pledgors to the Borrower. The Borrower undertakes to deliver this information to the Pledgors without delay and is fully liable for consequences of fulfilment of this obligation.

14.5. The Operator is not responsible for any consequences if the Borrower has changed its contact details without the respective notice given to the Operator.

14.6. The Borrower’s communication rules with the Agent and the Investors may be agreed in the separate agreements, governing their relationship.

 

15. Confidentiality and data protection

 

15.1. The information related to the Agreement, both the Parties, Projects, Agent and Investors, which is not public, shall be considered as confidential.

15.2. The disclosure of the confidential information is allowed only if it is required by the Law.

15.3. Additionally to the exception above, the Operator is entitled to disclose the confidential information if it, in the Operator’s opinion, is necessary for the execution of the Agreement and / or for protection of the interests of the Operator, or the Agent, or the Investor or the Borrower.

15.4. The Operator provides processing of personal data in accordance with its Privacy policy, GDPR and the Law. The Operator’s Privacy policy is available on the Website and the Borrower’s consent to it is the preliminary condition for use of the Services.

15.5. The Borrower gives it consent to processing of the personal data of the persons related to the Borrower in accordance with the Operator’s Privacy Policy for the purposes of this Agreement. The Borrower confirms that it has all the necessary authorizations from the mentioned related persons for giving such consents on their behalf and indemnifies the Operator against all and any complaints and claims related to this issue. The Borrower understands that if it recalls its consent to personal data processing the provision of the Services by the Operator may become impossible.

15.6. The Operator is entitled to transfer personal data to the third parties mentioned in the Operator’s Privacy Policy.

15.7. The Borrower agrees that the Operator and the Agent may use the address, email address and the phone numbers of the Borrower’s related persons in order to send notifications related to the Services and for communication with the Borrower.

 

16. Intellectual property

 

16.1. All the texts, documents, pictures, videos, music, photos, logo, trademarks, brands, domains, databases, software, web design and other components of the Website or texts or pictures included in the documents provided by the Operator to the Borrower in relation to this Agreement (together in this clause 14.1. – “the content”) is an intellectual property of the Operator or the Operator is a legal possessor of this information.

16.2. It is strictly prohibited to copy, sell, modify or use the information in other way, except for the purpose of use of the Services on the Platform in accordance with the Agreement, without the previous written consent of the Operator. The Operator has full rights for claiming indemnification in accordance with the Law if the Borrower breaches this rule.

 

17. Termination of the Operator’s activities

 

17.1. A declaration of bankruptcy of the Operator or termination of the Operator's operations for some other reason does not affect the validity of the loan documents already entered into (unless otherwise stated in the loan contract).

17.2. In the event that the Operator is declared bankrupt or if the Operator terminates its operations for some other reason:

17.2.1. the syndication period of each active Pool shall lapse prematurely;

17.2.2. if the Pool is completed, but the Loan is not disbursed to the Borrower, the Operator shall distribute the funds in the Pool between the Investors' accounts in a banking or payment institutions in accordance with their participation in the Pool;

17.2.3. if the Loan is disbursed to the Borrower in accordance with the Loan agreement the Agent may assign the right of claim arising from the Loan agreements entered into with the Borrower to the Investors who have participated in the respective Loan in accordance with their participation amount.

 

18. Complaints

 

18.1. The Borrower may submit its complaints to the Operator by email or by ordinary post.

18.2. The complaint will then be investigated and processed in accordance with the Operator’s Complaints handling policy.

 

19. Governing Law and dispute resolution

 

19.1. The relationship between the Borrower and the Operator arising from this Agreement shall be governed by Estonian Law.

19.2. If there any conflicts between the Parties, which cannot be solved via negotiations, the dispute shall be resolved in the courts of the Republic of Estonia in accordance with the Estonian Law.

19.3. The Parties agree that the full complaint resolution procedure shall be passed prior to the going to the courts.

 

20. Amendments to the Agreement

 

20.1. All the amendments and additional special agreements to this Agreement initiated by the Borrower shall be agreed and approved by the Operator in written form.

20.2. The Operator is entitled to make changes in these Terms, the Pricelist and any policies and other documents with one-month-notice to the Borrower sent via email. The changes and new documents shall enter into force after one month from the moment of the notice.

20.3. The Borrower shall familiarize itself with the updated documents and give its consent to the amendments prior or after their entrance in force, but in any case, before the further use of the services provided by the Operator. If the consent is not given the Operator shall suspend provision of the Services to the Borrower.

20.4. If the Borrower does not agree to the changes in the Agreement or other documents it is entitled to apply for the termination of the Agreement in accordance with the procedure stated in the cl. 13 of these Terms, provided there are no outstanding liabilities of the Borrower arising from any agreements entered into between the Borrower and the Operator or the Agent or the Investors.

 

Version 1. In force from the 1st of March, 2020

 

[1] The public documents (notarized or issued by state institutions) shall have a legal force in Estonia - to be legalized or certified with Apostille unless this requirement is repealed by the international agreements by the document issuing state and the Republic of Estonia.

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