Floww Markets Terms of Service – Company
1. ABOUT FLOWW MARKETS
1.1 Floww Markets Limited (“Floww Markets”), with its principal place of business located at 107 Cheapside, London, United Kingdom, EC2V 6DN, is authorised and regulated by the Financial Conduct Authority (with firm reference number 980098).
1.2 The Floww platform (“Floww”) (a) provides for the raising of capital by companies from venture capital firms, independent financial advisers, accelerators, family offices, brokers and/or other investors (each, an “Investor”) investing into companies (each, an “Investment”, and such fundraising being “Fundraising”); (b) enables introductions to Investors through the use of third party introducers as described in Clause 8 (each introducer that has met the requirements set out in Clause 8 being referred to as an “Introducer”); (c) enables bidding, allocation, settlement and subsequent administration in relation to such Fundraising; and (d) facilitates the sharing, validation and aggregation of certain data for the purposes of informing such Investments and Fundraisings. The functionality of Floww as described in (a) to (c) above is provided by Floww Markets pursuant to this Agreement. The functionality as described in (d) above (the “Floww SaaS Functionality”) is separately provided pursuant to the Floww SaaS Terms. The Investors have been on-boarded to Floww for the purposes of making an Investment and holding capital in one or more of such companies.
1.3 You (the “Company”) are a company that intends to make use of Floww for the purpose of Fundraising, by sharing your data with Investors, managing your company data and allocating shares to one or more of the Investors.
1.4 Floww Markets and its Affiliates are the entire legal and beneficial owners and licensors of Floww and are willing to license the Company use of Floww and the Investment Data on the terms set out in this Agreement.
1.5 Capitalised terms in this Agreement shall have the meanings set out in Paragraph 1 (Definitions) of Schedule 3 (Glossary of Terms) and this Agreement shall be interpreted in accordance with Paragraph 2 (Interpretation) of Schedule 3 (Glossary of Terms).
2. ACCEPTANCE OF THESE TERMS
2.1 This agreement will be deemed to have been entered into by the Company and Floww Markets upon execution of an engagement agreement between the Company and Floww Markets (the “Engagement Agreement”).
3. PROVISION OF FLOWW
3.1 Floww Markets shall provide the Company with access to Floww from the Effective Date and until the termination or expiry of this Agreement, subject to and in accordance with the terms of this Agreement.
3.2 Prior to the provision of Floww or of any Services to the Company pursuant to this Agreement, the Company must have satisfied (to, as applicable, Floww Markets’ and the Depositary’s satisfaction) the following requirements (together, the “Onboarding Checks”):
(a) Floww Markets’ due diligence checks, including in respect of anti-money laundering (AML), know-your-customer (KYC) and know-your-business (KYB) as appropriate; and
(b) the Depositary’s know-your-customer checks,
and Floww Markets may disclose the results of such Onboarding Checks to its Representatives to whom disclosure is required in connection with this Agreement.
3.3 The Company will provide such co-operation and information as reasonably requested by Floww Markets from time to time (including in respect of Onboarding Checks) and the Company represents and warrants that any such information is complete, current and accurate.
3.4 Prior to using Floww, the Company should consider the confirmations set out below. By entering into this Agreement, the Company represents, warrants and undertakes to Floww Markets, the Investor and the Depositary that:
(a) at all times it, and each of the Company’s Registered Users:
(i) is acting in the course of carrying on its trade, business or profession when receiving services from Floww Markets pursuant to this Agreement;
(ii) is bound by, and has the capacity, power, authority and approvals to enter into and perform its obligations under, and in accordance with, this Agreement (and all transactions and other documents to be entered into by it under this Agreement); and
(iii) will not use Floww for any purpose which is unlawful, abusive, libellous, obscene or threatening;
(b) it has reviewed, and understands the terms of, this Agreement;
(c) it has, or has had access to, adequate information in order to make an informed decision regarding its entry into this Agreement;
(d) it is not insolvent or bankrupt or subject to any insolvency proceedings or arrangements and confirms that no steps have been taken to appoint a receiver, manager or administrator over the Company or over any of its assets and that no steps have been taken for the Company’s winding-up or bankruptcy; and
(e) any shares the Company deposits with the Depositary are free from any rights or claims of third parties.
3.5 The Company shall immediately notify Floww Markets on becoming aware that any of the representations, warranties and undertakings set out in Clause 3.4 are untrue or become untrue in accordance with Clause 44 (Notices). Following such notification, Floww Markets may temporarily or permanently suspend the Company’s access to Floww and the Services.
4. SCOPE OF USE OF FLOWW
Use of Floww
4.1 Unless otherwise agreed in writing by Floww Markets, the Company may, subject to the terms of the relevant Certification Deed(s), Conditions and Certificates, use Floww in accordance with the following scope of use:
(a) the Company may carry out Fundraising on Floww by receiving funds from Investors, pursuant to which the Company will allocate shares in the Company to certain Investors and deposit such shares with the Depositary (whether directly or indirectly by way of Floww Markets) to be held for and on behalf of such Investors, and the Depositary will issue the Investors with Certificates evidencing such Investor’s Certificated Interests in such shares;
(b) subject to the Company entering into an engagement agreement with an Introducer in the form made available on Floww, the Company may use such Introducer to be introduced to Investors (such Investors appearing to the Company on an aggregated and anonymised basis); and
(c) the Company may use Floww to assist it in the administration of Investments including in relation to the Company’s exercise of its rights, or fulfilment of its obligations, under the relevant Certificates.
4.2 Floww Markets will not provide the Company with any financial advice and will not manage the Fundraising for the Company. Floww Markets is a platform providing technology services in respect of the electronic investment and holding of capital by Investors in one or more Companies. Otherwise than the terms set out in the Certification Deed, Conditions and Certificates, it will not be responsible for procuring or securing or otherwise arranging the making of investments on behalf of the Company. If the Company has any questions about Fundraising, or requires assistance in marketing, securing, and arranging investment, it should consult a financial adviser or an investment firm that is suitably regulated, qualified and authorised to provide investment advice and services.
4.3 Floww Markets is not obliged to provide services to the Company, nor any of the Company’s Registered Users, in respect of secondary sales of Certificates that involve the negotiation or execution of secondary sales between the Investors and any other party (on Floww or otherwise).
4.4 The Company shall, and shall procure that the Company’s Registered Users shall, comply with the following user rules when using Floww:
(a) ensure that Floww and the Investment Data is only used for lawful purposes and only for the purposes set out in this Agreement;
(c) ensure that the Company grants appropriate role-based permissions to the Company’s Registered Users to ensure that the Company’s Registered Users have the level of access and control over the Company’s access to Floww as the Company intends and as permitted by this Agreement;
(d) ensure that the Company’s Registered Users comply with any role based permissions, that such compliance is monitored and any restrictions on the Company’s Registered Users’ access to Floww is immediately notified in writing to Floww Markets;
(e) ensure that any of the Company’s Registered Users giving instructions to or via Floww in relation to a round of Fundraising (a “Fundraising Round”) are authorised by the Company to carry out such fundraising on behalf of the Company;
(f) ensure that the Company’s Registered Users keep secure and do not share their access credentials to Floww with any other person;
(g) only access and use Floww for the fundraising purposes of the Company and in the manner set out in this Agreement or as prescribed by Floww Markets from time to time;
(h) not to (and to not attempt to) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, adapt, screenshot, reverse engineer, decompile, disassemble, make error corrections to or distribute all or any portion of Floww or the Investment Data in any form (whether made available on a website, a marketing communication, a mobile app, or otherwise) or by any means unless expressly permitted under this Agreement;
(i) ensure that no Viruses or other material which is malicious or technologically harmful is introduced or uploaded to Floww;
(j) ensure that no one granted access to Floww under this Agreement attempts to gain unauthorised access to Floww, the server on which Floww is stored or any server, computer or database connected to Floww;
(k) ensure that no denial-of-service attack or distributed denial-of-service attack is carried out on Floww by anyone granted access to Floww under this Agreement;
(l) not to share any functionality details of Floww or the contents of Company Data with any party that may be in competition with Floww Markets or its Affiliates, or to access all or any part of Floww in order to build a product or service which competes with Floww;
(m) on request, supply to Floww Markets without delay all information Floww Markets reasonably requests in relation to the Company and/or the Company’s Registered Users’ use of Floww; and
(n) operate at all times in compliance with Applicable Law.
4.5 The Company will be responsible for:
(a) configuring its information technology, computer programs and/or platform in order to access Floww;
(b) the use of Virus protection software in connection with its systems and its receipt of the Services;
(c) any back-ups and storage of User Data; and
(d) making any arrangements necessary in order for it and the Company’s Registered Users to be able to use (or cease to use) Floww.
4.6 The Company shall:
(a) notify Floww Markets as soon as it becomes aware of any unauthorised use of Floww or the Investment Data by any person; and
(b) without prejudice to any of Floww Markets’ other rights or remedies under this Agreement, pay for broadening the scope of the licenses granted under this Agreement to cover the unauthorised use by users on behalf of the Company that are not the Company’s Registered Users by an amount equal to the Fees which Floww Markets would have levied had it licensed any such unauthorised use on the date when such use commenced.
4.7 The Company shall not, without the prior written consent of Floww Markets, allow Floww to become the subject of any charge, lien or encumbrance or deal in any other manner with any or all of its rights and obligations under this Agreement.
5. SCOPE OF USE OF DATA ON FLOWW
Responsibility for Company Data
5.1 The Company represents and warrants that any Company Data it uploads to, or shares on, Floww pursuant to Clauses 6 (Fundraising Process) and 7 (Settlement Process) is, at the time of upload or sharing, and at the time of each Teaser, First Completion and Additional Completion: (i) current and accurate, (ii) fair, clear and not misleading, and (iii) does not omit any information or statement(s) required to ensure that any information is fair, clear and not misleading.
5.2 Floww Markets accepts no responsibility for any Company Data that is uploaded to, or shared on, Floww and shall have no liability, of whatever nature, for any Losses incurred by the Company or any third party arising out of or in connection with the Company Data, any uploading of that Company Data or sharing of that Company Data to Investors. The Company hereby agrees to indemnify, defend and hold Floww Markets harmless against any Losses incurred by it arising out of or in connection with the Company Data.
Responsibility for Investment Data
5.3 Unless information is explicitly stated in writing as being approved by Floww Markets, the Company acknowledges and agrees that Floww Markets has not reviewed or approved any information about any Investment, including any announcements or other information on websites that are linked to from any Investment Offer.
5.4 Floww Markets accepts no responsibility for any Investment Data that is uploaded to, or shared on, Floww and shall have no liability, of whatever nature, for any Losses incurred by the Company or any third party arising out of or in connection with the Investment Data, any uploading of that Investment Data or sharing of that Investment Data between Participants.
5.5 Floww Markets will not provide the Company with any guidance regarding the Investment Data and/or other content that the Investors upload to Floww. Any decision by the Company to run a Fundraising Round on Floww is at the risk of the Company and the Company is solely responsible for its decisions to act, or not to act, on Floww. Floww Markets hereby excludes any liability for Losses arising from, or in connection with, the Company’s decisions to act, or not to act, upon any Investment Data and/or other content that the Investors upload to Floww.
5.6 The Company may set itself to ‘private’ mode within Floww, meaning that the Company will not appear in the ‘discover’ section of Floww. The Company will remain in private mode and not visible to the Investors until the Company requests to set itself to ‘public’ mode within Floww and such request is processed by Floww Markets. The Company must not (and must not attempt to) circumvent this setting in any circumstance.
6. FUNDRAISING PROCESS
6.1 Unless otherwise agreed in writing by Floww Markets and subject to Clause 8 (Introducers) (where the Company uses an Introducer) and Clause 9 (Fund Managers) (where an Investor appoints a Fund Manager), the Company may run a Fundraising Round to Investors using Floww as follows:
(a) The Company may initiate a Fundraising Round by providing notice to Floww Markets and shall provide Floww Markets with details of its planned Fundraising Round (including the total investment it is seeking) in accordance with the disclosure requirements set out on Floww from time to time and any other parameters which Floww Markets may at its discretion apply to Fundraising Rounds occurring pursuant to this Agreement.
(b) Following receipt of such details, Floww Markets shall provide a disclosure framework to the Company setting out the information required to be disclosed to Investors prior to initiating the Fundraising Round (the “Disclosure Information”). To be eligible to run a Fundraising Round on Floww, the Company must disclose the Disclosure Information to Investors. The Company shall provide such Disclosure Information using the Floww SaaS Functionality available on Floww from time to time.
(c) Following receipt of the Disclosure Information, Floww Markets shall either notify the Company of:
(i) its approval for the Company to commence its Fundraising Round in accordance with the rest of this Clause 6.1; or
(ii) any missing, incomplete and unclear Disclosure Information, which the Company may re-submit using the Floww SaaS Functionality for approval in accordance Clause 6.1(b).
(d) Where the Company wants to initiate a Fundraising Round, it shall send out initial, summary information about the Company and any Investor eligibility requirements using the functionality available on Floww from time to time (a “Teaser”) in one or more of the following ways:
(i) to individual or categories of Investors on Floww that the Company has identified in accordance with the functionality available on Floww from time to time;
(ii) to the contact details (provided by the Company) of Investors that are not on Floww; and
(iii) subject to Clause 8.2 (Introducers), to an Introducer,
and the Company acknowledges and agrees that a Teaser is not a financial promotion for the purposes of the FCA Rules.
(e) Subject to the Investors: (i) satisfying the onboarding checks undertaken by Floww Markets and the Investor eligibility requirements (including any such requirements specified in the Teaser or otherwise notified by the Company or Floww Markets); and (ii) agreeing to the Investor Terms, the Investors that make an expression of interest in participating in the Fundraising Round (either directly or via an Introducer) will qualify as participating investors (together, the “Participating Investors”) and appear in the Company’s order book on Floww.
(f) The Company shall provide to Floww Markets, and hereby authorises Floww Markets to provide, or make available to, the Participating Investors, the following information to invite them to make offers to invest (the “Invitation to Invest”):
(i) the total investment it is seeking from each Participating Investor and the number of Ordinary Shares being issued pursuant to the Fundraising Round (the “Fundraising Target”);
(ii) the price per Ordinary Share (the “Price Per Share”);
(iii) the minimum and maximum amount that can be invested by each Participating Investor (the “Investment Range”);
(iv) the date on which the Invitation to Invest will expire (“Investment Deadline”);
(v) the terms on which the Company is seeking funding;
(vi) if applicable, any conditions that need to be fulfilled before the Fundraising Round can proceed to Settlement (for example, the consent of a general meeting of existing shareholders of the Company or other consents), and including whether each such condition may be waived by the Company and/or the Investor (“Investment Conditions”);
(vii) the Disclosure Information; and
(viii) a disclosure letter setting out certain additional specific disclosures (“Disclosure Letter”).
(g) The Invitation to Invest will remain open until the earlier of: (i) the Investment Deadline for such Invitation to Invest; or (ii) Settlement (the “Investment Window”). During such Investment Window, each Participating Investor may make an offer to invest in the Company for an amount within a specific range within the Investment Range (the “Offer Range”) using the functionality available on Floww from time to time (“Investment Offer”).
(h) If the Invitation to Invest is oversubscribed, the Company may unilaterally elect to provide, or make available to, the Participating Investors an additional Invitation to Invest with higher valuations and/or on different terms. The Company may also share Teasers in relation to such additional Invitation to Invest with other Investors in accordance with this Clause 6. Any additional Invitation to Invest and Investment Offer made in respect of each additional Invitational to Invest will not affect the validity of any previous Invitation to Invest or Investment Offer.
(i) If, within the relevant Investment Window, a Participating Investor wishes to increase the value of any Investment Offer, it shall provide an updated Offer Range within the relevant Investment Range using the functionality available on Floww from time to time. Such updated Offer Range shall be deemed an Investment Offer and replace such Participating Investor’s existing Investment Offer in respect of that Invitation to Invest.
(j) A Participating Investor may alternatively make a non-binding expression of interest to invest in the Company for a specified amount within the Investment Range in accordance with the parameters set by Floww and using the functionality available on Floww from time to time. The Company acknowledges and agrees that such expression of interest is not an offer to invest.
(k) If any Invitation to Invest permits the Company to waive an Investment Condition, it may exercise such waiver using the functionality available on Floww from time to time in accordance with the terms of such Invitation to Invest. The Investor may also waive an Investment Condition if it is permitted to do so by any Invitation to Invest. The Company acknowledges and agrees that Floww Markets shall have no liability, of whatever nature, for any Losses incurred by the Company or any third party arising out of or in connection with any waiver of an Investment Conditions permitted by such Invitation to Invest.
(l) Floww Markets reserves the right, at its absolute discretion, to refuse to accept any Investment Offer and/or not to progress any Investment Offer to Settlement where the relevant Investor fails to satisfy any onboarding checks undertaken by Floww Markets or eligibility requirements set by Floww Markets or its third party partners from time to time.
6.2 The Company acknowledges and agrees that:
(a) other than as required under Applicable Law:
(i) unless agreed between the parties, Floww Markets does not examine or investigate the accuracy of any Teaser, Invitation to Invest or Investment Offer; and
(ii) Floww Markets at all times assumes any Teaser and Invitation to Invest are correct and reflect the Company’s requirements;
(b) without prejudice to Clause 10 (Changes to the Disclosure Information), if the Company makes a mistake when issuing any Teaser or Invitation to Invest, it shall correct such mistake as soon as possible using the functionality available on Floww from time to time (or, where such functionality is not available, by contacting Floww Markets in accordance with Clause 44 (Notices)); and
(c) Floww Markets is entitled to act on any instructions reasonably believed to have been given by the Company or a person registered with Floww to act on the Company’s behalf without further enquiry and Floww Markets shall have no liability, of whatever nature, for any Losses incurred by the Company arising out of or in connection with any actual or purported lack of power, authority, and/or approvals to enter into and perform its obligations under this Agreement or otherwise.
7. SETTLEMENT PROCESS
7.1 Subject to Clause 6.1(k) (Fundraising Process), at any time during the relevant Investment Window, the Company may choose to accept some or all of the unexpired Investment Offers for a given Invitation to Invest on their terms and shall make the corresponding allocation of shares to such Participating Investors, and Floww Markets shall:
(a) communicate such acceptance to the relevant Participating Investors (the “Allocated Investors”) confirming their Investment Offer was successful (the “First Investment Confirmation”); and
(b) provide the Allocated Investors and the Depositary the following information:
(i) the date of Settlement in respect of the First Confirmed Shares (“First Completion”);
(ii) the number of Ordinary Shares each Allocated Investor is allocated to subscribe for at First Completion (“First Confirmed Shares”), which may not be an amount outside the Offer Range for such Investment Offer; and
(iii) the aggregate subscription price in respect of the First Confirmed Shares (being the number of First Confirmed Shares multiplied by the Price Per Share) (the “First Aggregate Subscription Price”),
in each case, as determined by the Company in its absolute discretion.
7.2 At any time during the period for additional allocations as prescribed by Floww Markets from time to time, the Company may, following First Completion, elect to make a further allocation of shares under some or all of the unexpired Investment Offers (including those subject to the First Investment Confirmation), and Floww Markets shall, in respect of each such allocation:
(a) communicate such allocation to the relevant Participating Investor (which shall also be deemed an ‘Allocated Investors’) in writing (the “Additional Investment Confirmation”); and
(b) in respect of each such allocation, provide the relevant Allocated Investors and the Depositary the following information:
(i) the date of Settlement in respect of the Additional Confirmed Shares (“Additional Completion”);
(ii) the number of additional Ordinary Shares each relevant Allocated Investor shall subscribe for at Additional Completion (the “Additional Confirmed Shares”), which may not, when aggregated with the First Confirmed Shares (if any) or any other Additional Confirmed Shares, be an amount outside the Offer Range for each Investment Offer; and
(iii) each relevant Allocated Investor’s resulting aggregate subscription price for such Additional Confirmed Shares (being the number of such Additional Confirmed Shares multiplied by the Price Per Share) (the “Additional Aggregate Subscription Price”),
in each case, as determined by the Company in its absolute discretion.
7.3 Without prejudice to other rights and remedies the Company or the Depositary may have, where an Allocated Investor fails to pay, directly or indirectly, in cash or other immediately available funds, the First Aggregate Subscription Price or Additional Aggregate Subscription Price (as applicable) to the Depositary (except where such First Aggregate Subscription Price or Additional Aggregate Subscription Price has already been received by the Company), or is otherwise unable to complete the Investment, within thirty (30) days of the First Investment Confirmation or Additional Investment Confirmation (as applicable) (“Defaulting Allocated Investor”), the Company has the right (in its absolute discretion) to either:
(a) reduce the number of First Confirmed Shares or Additional Confirmed Shares (as applicable) allocated to the relevant Allocated Investor under the relevant First Investment Confirmation or Additional Investment Confirmation (as applicable); or
(b) terminate the relevant First Investment Confirmation or Additional Investment Confirmation (as applicable),
and, in each case, promptly re-allocate the Defaulting Allocated Investor’s First Confirmed Shares or Additional Confirmed Shares (as applicable) (or a portion thereof) as an additional allocation in accordance with Clause 7.2 (notwithstanding that such allocation may be after the expiry of the Investment Window). In such circumstances, the Company shall notify (whether directly or indirectly by way of Floww Markets) the Depositary to refund all or part of the First Aggregate Subscription Price or Additional Aggregate Subscription Price (as applicable) to such Defaulting Allocated Investor.
7.4 At any time following delivery of an Investment Confirmation pursuant to Clause 7.1 or an Additional Investment Confirmation pursuant to Clause 7.2 but prior to Settlement of the relevant First Completion or Additional Completion (as applicable), the Company may, in its absolute discretion, amend the date of Settlement in respect of the relevant First Confirmed Shares or Additional Confirmed Shares (as applicable) (such new date being “First Completion” or “Additional Completion”, as applicable) by way of written notice (whether directly or indirectly by way of Floww Markets) to the Allocated Investors.
7.5 Subject to the Investment Conditions having been fulfilled (or waived in accordance with Clause 6.1(k) (Fundraising Process)) and, subject to Clause 7.6 and, except where the First Aggregate Subscription Price or Additional Aggregate Subscription Price has already been received by the Company, the Depositary’s receipt of the First Aggregate Subscription Price or Additional Aggregate Subscription Price:
(a) the Company shall, on or prior to First Completion or Additional Completion (as applicable) enter into:
(i) Subscription Agreement(s) to allocate the First Confirmed Shares or the Additional Confirmed Shares (as applicable) at the First Aggregate Subscription Price and/or the Additional Aggregate Subscription Price (as applicable) (together, the “Allocated Shares”) to the Allocated Investors, such that the Allocated Shares shall be issued to and registered in the name of the Depositary (acting as bare trustee for and on behalf of each Allocated Investor), on and subject to the terms of the relevant Certification Deed, Conditions and Certificates; and
(ii) Certification Deed(s) and Shareholders’ Agreement(s) (or deed(s) of adherence to existing Shareholders’ Agreement(s)) in respect of the Allocated Shares,
(together, “Settlement”); and
(b) in consideration for the First Aggregate Subscription Price and, if applicable, the Additional Aggregate Subscription Price, the Company hereby irrevocably agrees to be bound by the relevant Subscription Agreement in all respects as if it were a party thereto as the “Company”, and to perform all the obligations, and abide by all the terms and conditions. The Company acknowledges it is entitled to rights and entitlements, in each case to perform all the obligations, and abide by all the terms and conditions, expressed to be imposed on such a party to such Subscription Agreement.
7.6 The Allocated Investor is liable to pay any bank transaction fees, foreign currency transaction fees or differences in value arising from any foreign currency conversion in respect of the First Aggregate Subscription Price or Additional Aggregate Subscription Price (as applicable) (together, the “Bank Fees”). Where the Depositary receives an amount equal to the First Aggregate Subscription Price or Additional Aggregate Subscription Price (as applicable) less the Bank Fees, the Company may (in its absolute discretion) elect to pay such Bank Fees and such payment shall waive the relevant Allocated Investor’s obligation to pay the Bank Fees under its Investor Terms.
7.7 The Company acknowledges and agrees that the relevant Subscription Agreement(s), Certification Deed(s) and Shareholders’ Agreement(s) (or deed(s) of adherence to existing Shareholders’ Agreement(s)) in respect of the Allocated Shares shall be generated by Floww Markets based on the information provided by the Company to Floww Markets pursuant to clause 6.1(a).
7.8 Following Settlement:
(a) the Company shall promptly:
(i) adopt new articles of association incorporating such changes as are considered reasonably necessary to implement the Settlement (the “Articles”); and
(ii) update its books and records, and make requisite Companies House filings;
(b) Floww Markets shall make available to the Company the following investment documents (together, the “Investment Documents”) using the functionality on Floww from time to time:
(i) the Articles;
(ii) the Disclosure Letter;
(iii) the relevant Certification Deed(s);
(iv) the relevant Subscription Agreement(s); and
(v) the relevant Shareholders’ Agreement(s) (or deed(s) of adherence to existing Shareholders’ Agreement(s)); and
(c) the Depositary will:
(i) hold the Allocated Shares for and on behalf of each Allocated Investor;
(ii) hold the Certificates as custodian for and on behalf of the Allocated Investors, subject to and in accordance with the Depositary Agreement; and
(iii) pay the Company an amount equal to the subscription funds received from each Allocated Investor less any fees, costs and expenses payable to Floww Markets.
7.9 The Company acknowledges and agrees that:
(a) offers of securities are sometimes subject to conditions or other market factors that prevent them from completing and Floww Markets shall have no liability, of whatever nature, for any Losses incurred by the Company or any other person arising out of or in connection with any Investment Offer, First Investment Confirmation and/or Additional Investment Confirmation not proceeding to Settlement;
(b) the Company bears the risk of its Fundraising Round and agrees that neither Floww Markets nor any of its Affiliates or their directors, staff, agents, suppliers or contractors will have any liability, of whatever nature, to the Company or anyone else for any Losses incurred by the Company as a result of Floww Markets procuring the Settlement of any Investment Offer it received;
(c) when the Company accepts an Investment Offer, subject to Clauses 6.2(a) (Fundraising Process) and 10 (Changes to the Disclosure Information), that acceptance may not be withdrawn or amended except at the absolute discretion of Floww Markets, including where the brand or reputation of Floww Markets or its Affiliates may be damaged as a result of the Investment; and
(d) if the Company does not meet the Fundraising Target, or decides not to allocate its shares, the Fundraising Round cannot proceed to Settlement and the Investment Offer will automatically terminate at the Investment Deadline. In such circumstances, the Company shall refund, or notify the Depositary to refund, the First Aggregate Subscription Price or Additional Aggregate Subscription Price (as applicable) to each Allocated Investor. Floww Markets shall have no liability, of whatever nature, for any Losses arising from termination of any Investment Offer for any reason.
7.10 Where an Allocated Investor is acting as a nominee:
(a) the Company shall, in sufficient time to allow the Company to issue a First Investment Confirmation and/or an Additional Investment Confirmation (as applicable) and Floww Markets to satisfy its due diligence checks, request from such Allocated Investor using the functionality available on Floww from time to time details of the beneficial owner(s) for which it will act as nominee when subscribing for the First Confirmed Shares and/or any Additional Confirmed Shares (as applicable) via the Depositary at First Completion and/or Additional Completion (as applicable) (the “Beneficial Owner(s)”);
(b) the Company may make any allocations to such Allocated Investor by way of a First Investment Confirmation and/or any Additional Investment Confirmation (as applicable), and any corresponding First Completion or Additional Completion in respect of to such Allocated Investor, subject to and conditional on the Company’s approval of the Beneficial Owner(s). The Company acknowledges and agrees that the Company’s approval to the Beneficial Owner(s) will be deemed given if it does not otherwise notify such Allocated Investor prior to such Allocated Investor’s receipt of a First Investment Confirmation or Additional Investment Confirmation (as applicable); and
(c) subject to the provisions of this Clause 7.10, the Company acknowledges and agrees that such Allocated Investor will subscribe, via the Depositary, for the First Confirmed Shares and/or any Additional Confirmed Shares (as applicable) as nominee for the Beneficial Owner(s).
8.1 Subject to the Company meeting the acceptance threshold (as may be notified to the Company by Floww Markets from time to time), Floww Markets may make available to the Company information about potential Introducers using the functionality available on Floww from time to time in order for such Introducers to provide introduction services to the Company.
8.2 Where the Company wishes to use an Introducer in respect of a Fundraising Round to facilitate introductions to potential Investors:
(a) subject to such Introducer having entered into a service agreement to be provided with access to the Floww SaaS Functionality, the Company hereby authorises Floww Markets to provide the Teaser, the Disclosure Information and the Company Data to:
(i) potential Introducers for the purpose of such Introducer deciding to act as introducer on a Fundraising Round; and
(ii) subject to the Company entering into an engagement agreement with an Introducer, to such Introducer for the purpose of distributing such information to introduced Investors;
(b) Floww Markets shall carry out the Fundraising process (as set out in Clause 6 (Fundraising Process)) and the Settlement process (as set out in Clause 7 (Settlement Process)) in respect of introduced Investors as if each introduced Investor was a Participating Investor, other than that each such process will be carried out in accordance with such allocation methodology agreed between the Introducer and the Company, and notified to Floww Markets by the Introducer; and
(c) depending on the introduction model agreed between the Company and the Introducer, the Company acknowledges and agrees that it may only receive information about the Investors on an aggregated and anonymous basis prior to Settlement.
9. FUND MANAGERS
9.1 The Company acknowledges and agrees that Investors may appoint Fund Managers to manage their portfolios, which may include such Fund Managers investing in Companies via Floww on behalf of such Investors. Where this is the case, the Company further acknowledges and agrees that:
(a) to the extent authorised to do so by an Investor, the Fund Manager may act on the Investor’s behalf to:
(i) make Investments participate in Funding Rounds initiated by the Company on Floww;
(ii) manage any Certificates representing Shares in the Company held by, for, or on behalf of the Investor;
(iii) enter into secondary sales in respect of Certificates;
(iv) receive information and give instructions to Floww Markets and the Depositary; and
(v) exercise the Investor’s rights under this Agreement, any such Certificates and the Investor Terms;
(b) nothing in this Agreement shall require Floww Markets or the Depositary to inform the Company of the name or address of such Investor, and where the Fund Manager is participating in a Funding Round on Floww on behalf of more than one Investor invested in the same Fund, the Company will only receive information about such Investors on an aggregated and anonymous basis prior to Settlement; and
(c) Floww Markets is not responsible for any Fund Manager. As such, subject to Clause 26.1, Floww Markets shall have no liability to the Company, whether in contract (including under any indemnity or warranty), in tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any losses arising as a result of any act, omission or default of a Fund Manager.
10. CHANGES TO THE DISCLOSURE INFORMATION
10.1 The Company shall notify the Participating Investors of any changes to the Disclosure Information it becomes aware of after sending an Invitation to Invest within five (5) Business Days of becoming aware of such changes. If any such change materially affects the position or prospects of the Company or its business (“Material Change”), it shall notify the Participating Investors using the functionality available on Floww from time to time and any Investment Offers in respect of such Fundraising Round shall be terminated. Following such termination, it shall be reissued to Participating Investors in accordance with Clause 6.1(f) (Fundraising Process) as a new Invitation to Invest (as amended by such Material Change).
10.2 The Company acknowledges and agrees that each Participating Investor is entitled to notify the Company of information that it has independently obtained that it believes amounts to a Material Change and request that the Company makes a Material Change notification in accordance with Clause 10.1.
10.3 If, in the reasonable opinion of the Company, there was no Material Change entitling the Investor to withdraw its Investment Offer in accordance with Clause 10.2. The Company will be entitled (at its own expense) to notify the Investor of its reasons for disputing that such information amounts to a Material Change. If the Investor does not accept such reasons, it may refer the dispute for resolution in accordance with Clause 45 (Governing Law and Jurisdiction) and, in such circumstances, the Investment Offer may not be withdrawn or settled unless and until such dispute is resolved.
10.4 Floww Markets is not responsible for making information about a Material Change available to the Investors or for evaluating whether any information disclosed by the Company could constitute evidence of a Material Change and will have no liability, of whatever nature, for Losses incurred by the Company arising out of or in connection with the provision of, or failure to provide, any such information to the Investors.
11. COMPANY CONTENT
11.1 The Company shall ensure that any content or material that it or the Company’s Registered Users upload onto Floww (including the Company Data) does not infringe any Applicable Laws or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or that infringes any third party Intellectual Property Rights).
11.2 The Company acknowledges that Floww Markets has no control over any content placed on Floww by the Company or the Company’s Registered Users and Floww Markets does not purport to monitor the content of Floww. Floww Markets reserves the right to remove content from Floww where it reasonably suspects such content is uploaded in breach of Clause 11.1.
11.3 The Company hereby agrees to indemnify, defend and hold Floww Markets harmless against any Losses incurred by it arising out of or in connection with any breach of Clause 11.1 by the Company.
12. SERVICE ASSURANCE
12.1 Floww shall function on an ‘as is’ and on an ‘as and when available’ basis and, as such, Floww Markets makes no guarantee:
(a) that Floww and the Investment Data will be free from errors or omissions, bugs or Viruses; and
(b) as to the availability, performance and quality of Floww and the Investment Data, and Floww Markets accepts no liability, of whatever nature, for Losses incurred by the Company arising out of or in connection with the accuracy or availability of Floww and the Investment Data, for any reliance placed on any content on Floww, or for the Company’s use of Floww and the Investment Data.
12.2 The Company accepts responsibility for the selection of Floww to achieve its intended results and acknowledges that Floww has not been developed to meet the individual requirements of the Company.
12.3 The Company acknowledges that any Open-Source Software and Third-Party Software provided by Floww Markets is provided ‘as is’ and expressly subject to the disclaimer in Clause 12.4.
12.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by Applicable Law, including any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
13. FLOWW DEVELOPMENT
13.1 Floww Markets may modify, upgrade and improve Floww in stages of development. The Company and the Company’s Registered Users’ continued use of Floww after any developments have been made will constitute acceptance of those developments.
13.2 This Agreement shall automatically apply to and govern the provision of the latest version of Floww.
14. COMPLIANCE WITH LAWS
14.1 The Company agrees that it shall:
(a) comply with Applicable Law and be solely responsible for such compliance;
(b) obtain and maintain, at its own cost, all necessary approvals, authorisations, permissions, licences and legal and regulatory advice relating to the Company’s and the Company’s Registered Users’ access to and use of Floww;
(c) have and shall maintain in place throughout the duration of this Agreement, its own policies and procedures to operate and enforce Applicable Law including without limitation those Applicable Laws specified in Clause 14.1(a) and to implement those policies and procedures, where and to the extent appropriate, against the Company’s personnel including without limitation any of the Company’s Registered Users or prospective users;
(d) monitor and be responsible for any suspicious activity arising from the Company’s access to and use of Floww; and
(e) promptly report to Floww Markets any request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement.
14.2 The Company shall notify Floww Markets as soon as the Company becomes aware of any change in Applicable Law that might affect the Company’s use of Floww and/or Floww Markets’ ability to provide Floww.
14.3 The Company shall notify Floww Markets as soon as the Company becomes aware of any changes to its financial circumstances and/or knowledge or experience as communicated by the Company to Floww Markets or any other information that demonstrates that the Company can no longer meet Floww Markets’ eligibility requirements.
15. FINANCIAL SERVICES COMPENSATION SCHEME
15.1 Floww Markets is covered by the UK Financial Services Compensation Scheme (“FSCS”). The FSCS can pay compensation to investors if Floww Markets is unable to meet its obligations, including through insolvency. If the Company is an eligible claimant, the Company may be entitled to compensation from the scheme if Floww Markets cannot meet its obligations. This depends upon the type of business and the circumstances of the claim. The Company’s eligibility for compensation from the FSCS is not impacted by the Company categorisation specified in Clause 17.1 (Company Categorisation) but rather on how the Company’s organisation is constituted. The Company should note that the FSCS does not cover trading losses.
15.2 For further information about the FSCS (including the amounts covered and eligibility to claim) the Company may contact Floww Markets or please refer to the FSCS website at www.fscs.org.uk or call 0800 678 1100. There is a limit on how much compensation can be paid, currently (October 2022) that limit is at £85,000, and the Company should note that some conditions apply to qualify for compensation under the FSCS.
16.1 If the Company has a complaint, it should report it to Floww Markets in accordance with the complaints policy (available on Floww, as may be updated from time to time).
16.2 Where the Company submits a complaint pursuant to Clause 16.1 and Floww Markets does not resolve it to the satisfaction of the Company, the Company may have a right to complain directly to the Financial Ombudsman Service, upon receiving Floww Markets’ final response to the complaint. The Financial Ombudsman Service is an independent organisation that helps to resolve complaints. Their address is Exchange Tower, Harbour Exchange Square, Isle of Dogs, London E14 9SR, their phone is 0800 023 4567 and their website is http://www.financial-ombudsman.org.uk.
17. COMPANY CATEGORISATION
17.1 Floww Markets is required by the FCA Rules to categorise the Company as either a professional client, a retail client or an eligible counterparty, each category having different protections made under the FCA Rules. Floww Markets will categorise the Company as either a retail client or a professional client based on the information that Floww Markets has about the Company and will notify the Company of this categorisation and the associated protections. To the extent that Floww Markets has categorised the Company as a professional client, the Company shall notify Floww Markets immediately if, at any point in time, the Company considers that it would no longer fall within the definition of a per se professional client or an elective professional client. The Company has a right to request a different categorisation at any time. On consultation about the Company’s categorisation, the Company will be informed about any limitations to the level of client protection that a different categorisation would entail, prior to Floww Markets’ provision of further services to the Company. Floww Markets has no obligation to accept requests from professional clients to be treated as a retail client.
17.2 Regardless of whether the Company is acting as an agent for someone and unless otherwise agreed with Floww Markets in writing, the Company shall be deemed to be Floww Markets’ client for the purposes of the FCA Rules.
18. SUITABILITY, APPROPRIATENESS AND RISK WARNINGS
18.1 Floww Markets will conduct suitability and appropriateness assessments as required in accordance with Applicable Law. Floww Markets reserves the right to carry out such assessments prior to access of services and periodically thereafter.
18.2 Floww Markets does not provide investment advice and will not be responsible for making any determination as to the suitability of any Investment for the Company. Before making any Fundraising Round, the Company should independently satisfy itself that it understands and appreciates the significance of the relevant risks, and that such a Fundraising Round is appropriate and suitable for the Company in light of its objectives, experience, financial and operational resources, and other relevant circumstances. The Company should also ensure that it fully understands the nature of the transaction and contractual relationship into which the Company is entering and the nature and extent of its exposure to risk of loss, which may significantly exceed the amount of any initial fundraising by the Company.
18.3 Non-exhaustive information on certain risks arising in relation to certain financial instruments is set out in Schedule 2 (Risk Warnings). It is important that the Company considers these risks before making any Fundraising Round. The information contained in Schedule 2 (Risk Warnings) cannot disclose the nature of all risks of all Fundraising Round or disclose everything about generic types of risk. The information contained in Schedule 2 (Risk Warnings) is a general description of the risks associated with the Fundraising Round available on Floww. The Company should not rely on the highlighted risks as being the only risks in relation to the Investments.
19. CONFLICT OF INTEREST
19.1 Floww Markets shall comply with its conflicts of interest policy (available on Floww, as may be updated from time to time). Occasions may arise where Floww Markets, or one of its Affiliates or customers, has some form of interest in business being transacted by the Company and a conflict of interest may arise. Floww Markets will manage any such conflict, or potential conflict in accordance with such conflicts of interest policy to ensure that it does not materially affect the Fundraising Round. Floww Markets will inform the Company if it considers that it cannot adequately manage such a conflict.
20.1 The Company shall pay Floww Markets the fees, costs and disbursements (including, in each case, any associated sales tax) set out on Floww from time to time or as agreed in writing between the parties (together, the “Fees”), such as:
(a) fees related to certain functionality or service provided in respect of each Investment on Floww;
(b) fees for each Fundraising Round carried out on Floww;
(c) where the Company has agreed with Floww Markets to use the services of a third party available on Floww (including the Introducer) and such third party has authorised Floww Markets to collect such fees, such fees payable for such third party services; and
(d) where the Company does not proceed with a Fundraising Round after providing an Invitation to Invest, the Company shall reimburse Floww Markets for all costs and expenses incurred by Floww Markets in performing its obligations under this Agreement in respect of the aborted Fundraising Round.
20.2 The Company acknowledges and agrees that Floww Markets may update the Fees from time to time, but the Fees in force at the time the Company initiates a Fundraising Round by sharing the Teaser in accordance with Clause 6.1(d) (Fundraising Process) shall apply to that Fundraising Round.
20.3 Floww Markets will provide the Company with information on any costs and charges arising in the provision of under this Agreement in accordance with Applicable Law.
21. PAYMENTS AND INVOICING
21.1 The Fees shall be payable by the Company as follows:
(a) where any Fees were incurred prior to any amount being payable to the Company (including the Subscription Amounts received from Allocated Investors following Settlement), the Company hereby irrevocably authorises the Depositary to deduct such Fees and any interest owing on unpaid invoices (in accordance with Clause 21.4) from such amount prior to payment to the Company and pay such fees directly to Floww Markets or the relevant third party; and
(b) Floww Markets may otherwise elect to invoice the Investor for any Fees in arrears and such Fees shall be payable by the Company within thirty (30) days of its receipt of a valid and correct invoice issued in accordance with this Clause 21.
21.2 In respect of each invoice issued in accordance with this Clause 21 Floww Markets shall on request provide such details and supporting documentation as Floww Markets deems sufficient to enable the Company to verify the accuracy of the invoice.
21.3 Invoices issued in accordance with this Clause 21 shall be denominated in and payable in Pounds Sterling by bank transfer.
21.4 Floww Markets may charge the Investor interest at rate equal to four (4%) per cent per annum above the then current Bank of England base rate on any validly issued invoice paid late, which shall accrue on a daily basis from the due date until actual payment of the overdue amount.
21.5 All Fees under this Agreement are exclusive of all sales tax or other similar tax, in any jurisdiction, which (if applicable) shall be paid by the Company.
22. DISPUTED INVOICES
22.1 In the event of any dispute regarding the accuracy of an invoice:
(a) the disputing party shall notify the other party promptly and provide a detailed description as to the reason for the dispute; and
(b) the parties shall work together to resolve the dispute, including by provision of further supporting materials and records to support their position.
22.2 The Company will not be required to pay any invoice subject to a good faith dispute. If the dispute relates to only part of an invoice, Floww Markets shall cancel the invoice and issue a new invoice in respect of the undisputed part. Floww Markets shall pay the reissued invoice in accordance with the payment terms.
23. CONFIDENTIALITY AND PUBLICITY
23.1 Each party receiving Confidential Information (the “Recipient”) undertakes to the other party (the “Disclosing Party”) to:
(a) hold all Confidential Information of the Disclosing Party which it obtains in relation to this Agreement in strict confidence;
(b) not disclose, or authorise the disclosure of, the Disclosing Party’s Confidential Information to any third party other than in accordance with Clauses 23.2 and 23.4;
(c) not allow unauthorised access to, or modification or deletion of, the Disclosing Party’s Confidential Information;
(d) not use, or authorise anyone to use, the Disclosing Party’s Confidential Information for any purpose other than the performance of the Recipient’s obligations or the exercise of its rights or the receipt of any benefits under this Agreement; and
(e) promptly notify the Disclosing Party of any suspected or actual unauthorised disclosure, access, modification, deletion or use of the Disclosing Party’s Confidential Information of which the Recipient becomes aware and promptly take all reasonable steps that the Disclosing Party may require in order to prevent, stop or remedy such unauthorised activity.
23.2 As long as the Disclosing Party remains responsible for its Representatives’ compliance with the obligations set out in this Clause 23, either party may disclose the other party’s Confidential Information to its Representatives, but only to the extent, and provided, that such persons:
(a) need to know the Confidential Information disclosed to them;
(b) have been informed in writing of the confidential nature of the Confidential Information and the purpose for which it may be lawfully used; and
(c) comply with the terms of this Agreement in respect of the Confidential Information disclosed to them.
23.3 Clause 23.1 shall not apply to Confidential Information to the extent that:
(a) the Confidential Information was, is or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient’s knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient;
(b) such disclosure is required in order to facilitate any assignment or proposed assignment of the whole or any part of the rights or benefits under this Agreement, or any novation or proposed novation of this Agreement, which is permitted by Clause 36 (Assignment and Subcontracting);
(c) such Confidential Information has been independently developed by the Recipient without reference to the Confidential Information of the Disclosing Party; or
(d) the Disclosing Party has approved in writing the particular use or disclosure of the Confidential Information.
23.4 Each party may disclose the other party’s Confidential Information if, and to the extent that, it is required to do so by any governmental authority, court, relevant stock exchange or otherwise by Applicable Law, provided that, to the extent it is permitted to do so, it shall:
(a) notify the other party as soon as practicable upon becoming aware of the obligation to disclose and, to the extent that it is prevented from notifying the other party, it shall use commercially reasonable endeavours to challenge any restriction on disclosure of the request to the other party, which shall include applying to the court for the removal of such restriction where applicable; and
(b) at the other party’s request, use commercially reasonable endeavours (and, where applicable, in cooperation with the other party) to avoid or limit the disclosure and obtain assurances as to the confidentiality and use of the data from the body to whom the Confidential Information is to be disclosed.
23.5 The Company may at its discretion state on the Company’s website that it makes use of Floww as part of its business.
23.6 Subject to Clause 23.5, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by Applicable Law or any Regulator (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
23.7 On expiry or termination of this Agreement, or earlier on Floww Markets’ request, each party will:
(a) destroy (if so requested) or return to the other party all documents and materials (and any copies) in its possession or the possession of its subcontractors containing, reflecting, incorporating the other party’s Confidential Information;
(b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) certify in writing to the other party that it has complied with the requirements of this Clause 23.7,
provided that a Recipient may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
23.8 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party, or to be implied from this Agreement.
24. EXPORT AND COMPLIANCE WITH POLICIES
24.1 Neither Floww Markets nor the Company shall export, directly or indirectly, any technical data acquired from the other under this Agreement (or any products, including software, incorporating any such data) in breach of any Applicable Laws (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
24.2 Each party undertakes:
(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
25. DATA PROTECTION
25.1 When used in this Agreement, the terms “controller”, “data subject”, “personal data”, “personal data breach”, “processing”, and “processor” shall have the meaning given in the UK GDPR.
25.2 The parties acknowledge and agree that:
(a) the Company is the controller and Floww Markets is a processor for and on the Company’s behalf in respect of the Company Personal Data;
(b) Schedule 1 (Description of Personal Data Processing) sets out a description of the processing of Company Personal Data under this Agreement, including the scope, nature and purpose of processing, the duration of the processing, the types of personal data and the categories of data subjects; and
(c) both parties are controllers in respect of any personal data within the Investment Data.
25.3 In relation to the Company Personal Data, Floww Markets shall:
(a) only process the Company Personal Data in accordance with the Company’s written instructions, unless it is required to do otherwise by Applicable Law. In the event that Floww Markets is required to do otherwise, it shall inform the Company of such legal requirement before processing the Company Personal Data, unless that same law prohibits it from doing so on important grounds of public interest;
(b) ensure that all such Floww Markets personnel that have access to and/or process the Company Personal Data are obliged to keep the Company Personal Data confidential;
(c) taking into account the state of the art, costs of implementation and the nature, scope, context and purposes of the processing, ensure that it has in place appropriate technical and organisational measures to ensure the security of the Company Personal Data;
(d) ensure that, where Floww Markets processes or permits to be processed Company Personal Data outside of the United Kingdom, it shall do so in compliance with data transfer requirements under the Data Protection Legislation;
(e) maintain complete and accurate records and information to demonstrate its compliance with this Clause 25 and make available such records and any other information reasonably required to demonstrate compliance with its obligations as a processor in accordance with Clause 25.3(a);
(f) promptly inform the Company if it considers that any of the Company’s instructions infringe the Data Protection Legislation;
(g) notify the Company without undue delay on becoming aware of a personal data breach;
(h) notify the Company without undue delay if it receives any complaint, notice or communication that relates to its processing of the Company Personal Data (including without limitation any data subject rights requests) and/or to any party’s compliance with the Data Protection Legislation;
(i) at the Company’s written direction, delete or return all Company Personal Data, unless required by Applicable Law to retain it;
(j) provide co-operation and assistance to the Company, at the Company’s cost, to allow the Company to comply with its obligations under the Data Protection Legislation with respect to data security, data breach notifications, data protection impact assessment, consultations with supervisory authorities, the fulfilment of data subjects’ rights, and any enquiry, notice or investigation by a supervisory authority;
(k) not authorise any third party to sub-process the Company Personal Data without the prior written approval of the Company. Those sub-processors approved as at the commencement of this Agreement are as set out in Schedule 1 (Description of Personal Data Processing). Floww Markets may update its list of sub-processors from time to time, by providing the Company at least fourteen (14) days’ notice before providing any new sub-processor with access to Company Personal Data. If the Company does not approve of any such changes, the Company may terminate its subscription to Floww without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval; and
(l) enter (or confirms that it already has entered) into a written agreement with any authorised sub-processor, incorporating terms which are substantially similar to those set out in this Clause 25.3. Floww Markets shall remain fully liable for all acts or omissions of any authorised sub-processors.
25.4 In relation to the Company Personal Data, the Company shall:
(a) provide adequate information, in accordance with applicable Data Protection Legislation, to data subjects about the processing of Company Personal Data via Floww and shall notify the relevant data subjects of the fact that Company Personal Data will be provided to Floww Markets and, where appropriate, other Participants;
(b) ensure that Company Personal Data uploaded to Floww is accurate and, where appropriate, kept up-to-date. The Company shall notify Floww Markets if it becomes aware that such data is inaccurate;
(c) ensure that it has a lawful basis/bases for processing (including where required obtaining consent from the relevant data subject) any personal data that it causes to be processed via Floww under this Agreement (including the Company Personal Data) and, where required, all necessary licences, permissions, consents and/or notices, (including from the data subjects whose personal data will be processed by Floww Markets and/or third party processor(s) as contemplated under this Agreement) in place to enable lawful transfer of any personal data to Floww Markets for the duration and purposes of this Agreement; and
(d) indemnify, defend and hold Floww Markets harmless against any Losses incurred by it arising out of or in connection with any breach of this Clause 25 or Data Protection Legislation by the Company.
25.5 Where the Company is uploading personal data to Floww on behalf of another Participant, it shall procure that that Participant shall comply with the obligations set out in Clauses 25.4(a) to 25.4(d).
25.6 Where the parties act as controllers, each party shall comply with all applicable Data Protection Legislation in relation to the processing of personal data and will provide the other party with reasonable assistance as necessary to allow the other party to fulfil their obligations under applicable Data Protection Legislation.
26. LIMITS OF LIABILITY
26.1 Nothing in this Agreement limits or excludes a party’s liability:
(a) for death or personal injury arising out of its negligence or that of its personnel;
(b) for Losses suffered by the other party arising out of the first party’s (or its personnel’s) fraud or fraudulent misrepresentation; and
(c) to the extent that it cannot be legally limited or excluded by law.
26.2 Subject to Clause 26.1, Floww Markets shall have no liability to the Company, whether in contract (including under any indemnity or warranty), in tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
(a) loss of profit;
(b) loss of revenue;
(c) loss of anticipated savings;
(d) loss of contract, business or opportunity;
(e) loss of goodwill; or
(f) wasted expenditure,
in each case whether direct or indirect, or any indirect or consequential Losses of any kind whatsoever and however caused.
26.3 Subject to Clause 26.1, Floww Markets’ total liability to the Company, whether in contract (including under any indemnity or warranty), in tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any Losses incurred or suffered by the Company shall be limited for all claims in aggregate to the greater of:
(a) a sum equal to fifty (50%) per cent the total Fees paid to Floww Markets under this Agreement; and
(b) ten thousand (£10,000) Pounds Sterling.
26.4 Any action against Floww Markets must be brought by the Company within ninety (90) days of the relevant cause of action arising.
26.5 All dates supplied by Floww Markets or its Representatives for the performance of this Agreement shall be treated as approximate only. Floww Markets and its Representatives shall have no liability, of whatever nature, for any Losses arising from any delay in performance of this Agreement beyond such approximate dates.
26.6 The Company acknowledges and agrees that its exclusive remedy for any Losses incurred by it arising out of or in connection with its use of Floww SaaS Functionality shall be as set out in the Floww SaaS Terms.
27. INDEMNIFICATION PROCEDURE
27.1 Where any indemnity is given by the Company to Floww Markets under this Agreement, the following procedures apply:
(a) within thirty (30) days of being notified of a notice of any claim qualifying for an indemnity (but no later than ten (10) days before the date on which any response to a claim is due), the Company shall assume control of the defence and settlement of that claim by giving Floww Markets a notice to that effect, except Floww Markets may assume control of the defence and settlement of a claim at any time in its absolute discretion;
(b) the Company shall not enter into any settlement of such claim or compromise any such claim without Floww Markets’ prior written consent. Floww Markets shall have the right to participate in such settlement or compromise discussions with the legal counsel of its own choice; and
(c) if the Company fails to defend the claim in time, ceases to defend the claim, or fails to defend the claim to the satisfaction of Floww Markets, Floww Markets shall, at the Company’s cost, have the right to defend, settle or compromise the claim in such manner as it may deem appropriate.
28. INTELLECTUAL PROPERTY RIGHTS
Ownership of Intellectual Property Rights
28.1 Except as otherwise expressly set out in this Agreement, Floww Markets and its third party licensors shall own all Intellectual Property Rights subsisting in or arising in connection with Floww and the Investment Data, and, except as licensed under this Agreement, the Company and its personnel shall not acquire any Intellectual Property Rights in those items and Clause 28.3 shall apply if or to the extent that they might otherwise do so.
28.2 Except as otherwise expressly set out in this Agreement, the Company and its third party licensors shall own all Intellectual Property Rights subsisting in or arising in connection with any Company Data and User Data, and, except as licensed under this Agreement, Floww Markets and its personnel shall not acquire any Intellectual Property Rights in those items and Clause 28.3 shall apply if or to the extent that they might otherwise do so.
28.3 If at any time, through the provision of the Services or otherwise, a party, an Investor or their respective personnel, by operation of law, comes to own Intellectual Property Rights other than in accordance with the allocation contemplated by this Clause 28, it shall (and shall use commercially reasonable endeavours to procure that an Investor (in the case of Floww Markets) and personnel shall), on request from the other party and at its own expense, assign (with full title guarantee and free from encumbrances) such Intellectual Property Rights to the other party and, to the extent permitted by law, waive all moral rights (and analogous rights) worldwide in connection with such Intellectual Property Rights.
Licence of Floww Markets Intellectual Property Rights
28.4 In consideration of and conditional upon payment of the Fees by the Company to Floww Markets, Floww Markets hereby grants to the Company a non-exclusive, non-transferable, revocable, limited licence for the duration of this Agreement to use Floww and the Investment Data, in each case solely for the purpose of, and to the extent necessary for, the Company to receive the Services.
Licence of Company Intellectual Property Rights
28.5 The Company hereby grants to Floww Markets and its subcontractors a non-exclusive, transferable, irrevocable royalty-free licence for the duration of this Agreement to use the User Data and Company Data, in each case solely for the purpose of, and to the extent necessary for:
(a) assessing, processing and executing Fundraising in accordance with Clauses 6 (Fundraising Process) and 7 (Settlement Process);
(b) the performance of Floww Markets’ obligations under this Agreement or such other use as may be notified by Floww Markets to the Company on Floww from time to time; and
(c) generating user insights and usage analysis from the Company’s use of Floww.
29. RECORDS RETENTION
29.1 Floww Markets shall, and shall use commercially reasonable endeavours to procure that each of its sub-contractors shall, keep or cause to be kept complete, human readable and accurate Records.
29.2 Floww Markets shall maintain each of the Records in a secure and suitable facility readily accessible to the Company and any Regulator during the term of this Agreement for the periods set out in Schedule 1 (Description of Personal Data Processing).
30. AUDIT AND CO-OPERATION WITH REGULATORS
30.1 Floww Markets shall promptly provide the Company, at the Company’s request, with any Records that are reasonably required by the Company to enable the Company to comply with Applicable Law.
30.2 At a frequency of not more than once in any twelve (12) month period in total and upon giving at least twenty (20) Business Days’ prior written notice to the registered company offices, Floww Markets shall allow the Company, the Company’s professional auditors and/or Regulators access to the relevant Records and Floww Markets shall, and shall procure that its subcontractors shall, provide full cooperation in relation to its provision of Floww. The requirements of this Clause 30.2 shall apply to the extent permitted by Applicable Law.
30.3 Subject to the Company’s compliance with any requirements applicable to the disclosure of Confidential Information and its compliance with any Applicable Law, the Company shall promptly provide Floww Markets with all such information, documents and instructions as Floww Markets may reasonably require to fulfil its obligations under this Agreement.
30.4 Unless Floww Markets notifies the Company that the Company will be responsible for dealing with a particular type of communication or correspondence with a Regulator, Floww Markets shall:
(a) be responsible for communications or correspondence in relation to Floww Markets and its Affiliates in relation to this Agreement and the provision or receipt of the Services; and
(b) keep the Company reasonably informed of such communications or correspondence to the extent that they affect the Company’s obligations under this Agreement, except for any matters involving any suspected criminal activity under any Applicable Law.
30.5 The Company shall notify Floww Markets of all enquiries from a Regulator that the Company receives which relate to the provision or receipt of the Services or either party’s obligations under this Agreement.
30.6 Where the Company deals directly with a Regulator, at the request of the Regulator or otherwise in accordance with Clause 30.4, it shall do so in an open and co-operative way in consultation with Floww Markets or its Affiliates.
30.7 The Company shall notify Floww Markets of any matters that may result in the Company or any of the Company’s Registered Users being required to make a notification or otherwise report to a Regulator.
30.8 The Company shall provide Floww Markets with reasonable assistance in connection with an investigation by any Regulator relating to or connected with the provision or receipt of the Services or this Agreement or either party’s obligations under it.
30.9 To the extent permitted by Applicable Law or a Regulator, the Company hereby agrees to indemnify and hold Floww Markets and its Affiliates harmless against any costs and expenses incurred by them arising out of or in connection with:
(a) dealing with any investigations, proceedings or hearings involving a Regulator, to the extent attributable to the act, omission or default of the Company or the Company’s Registered Users;
(b) any cost, interest, or charge by any governmental entity, financial institution, Regulator, competent court or tribunal or other third party, to the extent attributable to the act, omission or default of the Company or the Company’s Registered Users; and
(c) otherwise complying with Floww Markets’ obligations under this Clause 30 (Audit and Co-operation with Regulators), which shall be charged at the Company’s cost in accordance with Floww Markets’ standard rate card for professional services.
31. TERM AND TERMINATION
Commencement and duration
31.1 This Agreement shall commence on the Effective Date and continue in full effect until terminated in accordance with the terms of this Agreement.
31.2 Provisions supplemental to this Agreement may apply to particular Fundraising Rounds and will be notified to the Company at the relevant time.
31.3 When the Company requests or accepts any services provided by Floww Markets under this Agreement, unless otherwise agreed, the Company will be deemed to accept the latest version of this Agreement notified to them.
31.4 Without affecting any other right or remedy available to it, Floww Markets or the Company may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement, any Certification Deed, Conditions or Certificates which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
(b) an Insolvency Event occurs in respect of the other party.
31.5 The Company acknowledges and agrees that it will be required to maintain the Floww SaaS Terms and this Agreement for so long as its shares are held by the Depositary for and on behalf of Investors under Depositary Agreements. The Company acknowledge that, if the Floww SaaS Terms or this Agreement terminate for any reason, FOMtech may terminate the Floww SaaS Terms, Floww Markets may terminate this Agreement and the Depositary may terminate the Certification Deed, in each case in accordance with its terms.
31.6 Either party may terminate this Agreement by providing thirty (30) days’ written notice to the other party at any time.
31.7 If either party has issued valid written notice to terminate this Agreement, Floww Markets will not be obligated to progress any Investment Offer to Settlement.
Consequences of termination
31.8 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement that existed at or before the date of termination or expiry.
31.9 On termination or expiry of this Agreement for any reason:
(a) Floww Markets shall cease to provide access to Floww and the Investment Data, and the Company may not make use of Floww unless it enters into a new agreement with Floww Markets;
(b) all rights granted to the Company under this Agreement shall cease and the Company will no longer be able to access any Investment Data;
(c) the Company’s rights and obligations under the Certificate(s) will be unaffected and remain in full force and effect;
(d) the Company shall cease all activities authorised by this Agreement and shall destroy any Investment Data that it has in its possession as soon as possible after termination or expiry of this Agreement;
(e) the Company may extract any User Data contained on Floww at the Company’s request within thirty (30) days of the date of such termination or expiry;
(f) subject to Clause 10 (Changes to the Disclosure Information), any Investment Offer made by the Investor shall proceed in accordance with Clause 6 (Fundraising Process) to Settlement in accordance with Clause 7 (Settlement Process); and
(g) the Company shall immediately pay to Floww Markets any sums due to Floww Markets under this Agreement.
31.10 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
33.1 Unless otherwise specifically agreed in writing between the parties, the Company shall not, directly or indirectly, solicit or engage any Investor that has received a Teaser in accordance with Clause 6.1(d) (Fundraising Process) in order for such Investor to make an Investment in respect of a Fundraising Round other than via Floww from the date the Company issued the Teaser until twelve (12) months following such date.
33.2 Breach of the condition in Clause 33.1 will render the Company liable to pay Floww Markets liquidated damages equal to two (2%) per cent of the total value of shares allocated to such Investors by the Company. Such payment shall not limit any other rights or remedies otherwise available to Floww Markets and shall not operate to cap the Company’s liability in respect of the relevant violation, provided that if Floww Markets brings an action based on the same circumstances that gave rise to the payment, any future award of damages arising as a result of that action shall, to the extent that the award does not take such payment into account, be reduced by the amount of such payment.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
35. ENTIRE AGREEMENT
35.1 This Agreement, the Schedules to this Agreement and the documents referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
35.2 Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) (“Representation”) other than as expressly set out in this Agreement.
35.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.
36. ASSIGNMENT AND SUBCONTRACTING
36.1 The Company shall not assign, novate, subcontract or otherwise dispose of any or all of its rights and obligations under this Agreement without the prior written consent of Floww Markets.
36.2 Subject to Clause 25 (Data Protection), Floww Markets may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement, provided it gives written notice to the Company. If the Company objects to the assignment it can terminate this Agreement in accordance with Clause 31.6 (Term and Termination).
36.3 Floww Markets and the Company each confirm they are acting on their own behalf and not for the benefit of any other person.
36.4 A party assigning any or all of its rights under this Agreement may disclose to a proposed assignee any information in its possession that relates to this Agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this Clause 36.4 shall be made until notice of the identity of the proposed assignee has been given to the other party.
37.1 Floww Markets may, in its discretion, make changes to this Agreement from time to time. Any changes:
(a) to the duration of this Agreement;
(b) resulting in an increase in Fees; and/or
(c) that Floww Markets considers, in its absolute discretion, to be sufficiently material so as to constitute a material change,
(each a “Material Variation”) will be notified in writing to the Company no less than thirty (30) days prior to the proposed Material Variation coming into effect. No later than the expiry of the thirty (30) day notice period, the Company must notify Floww Markets in writing if it does not accept the proposed Material Variation, following which this Agreement will terminate with effect upon receipt of such notice by Floww Markets, and Clauses 31.8 to 31.10 (Consequences of Termination) shall apply. If the Company fails to notify Floww Markets in writing that it does not accept the proposed Material Variation within the thirty (30) day notice period, and continues its use of Floww thereafter, the Company will be deemed to have accepted such Material Variation. Notwithstanding the foregoing, any Material Variation that is required in order to comply with Applicable Law will become effective on notification by Floww Markets.
37.2 Any change that is not a Material Variation will be notified on Floww. The Company shall be responsible for monitoring any such notification e-mails and variations to this Agreement regarding non-Material Variations.
37.3 The continued use of Floww by the Company and the Company’s Registered Users following implementation of any variation to this Agreement will constitute acceptance of such variation.
37.4 Subject to the rest of this Clause 37, no variation or amendment of this Agreement shall be valid unless it is agreed in writing between the parties. Unless expressly agreed, no variation or amendment shall constitute a general waiver of any provision of this Agreement, nor shall it affect any rights or obligations under or pursuant to this Agreement which have already accrued up to the date of variation or amendment, and the rights and obligations under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are varied or amended.
38.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
38.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 38.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered (as appropriate) shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
40. THIRD-PARTY RIGHTS
40.1 Except as provided in Clauses 40.2 and 40.3, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
40.2 Each Investor may enforce the following terms of this Agreement against the Company:
(a) the warranty given by the Company in Clause 5.1 (Scope of use of data on Floww) in respect of the Company Data being current and accurate;
(b) the obligations on the Company to proceed to Settlement following a First Investment Confirmation and, if applicable, Additional Investment Confirmation in accordance with Clause 7 (Settlement Process);
(c) the waiver of the obligation to pay the Bank Fees in accordance with Clause 7.6 (Settlement Process);
(d) the obligation on the Company to notify the Investors of any Material Change in accordance with Clause 10.1 (Changes to the Disclosure Information);
(e) the right under Clause 10.3 (Changes to the Disclosure Information) for an Investor to dispute the reasons given by the Company that there was no Material Change; and
(f) the confidentiality obligations in Clause 23 (Confidentiality and Publicity).
40.3 The Depositary may enforce the following terms of this Agreement against the Company:
(a) the warranty given by the Company in Clause 3.4(e) (Provision of Floww) in respect of the shares being deposited with the Depositary;
(b) the obligation on the Company to provide certain information to the Depositary under Clauses 7.1(b) and 7.2(b) (Settlement Process); and
(c) the authorisations given by the Company to the Depositary in this Agreement.
40.4 The parties agree that they may vary, rescind or terminate this Agreement (whether or not in a way that varies or extinguishes rights or benefits in favour of the Investor) without the Investor’s consent.
41. CONDUCT OF CLAIMS
41.1 In the event of any claim, action or demand which is made or threatened by any Investor against the Company which is reasonably likely to give rise to liability under Clause 40.2 (Third-Party Rights) greater than ten thousand (£10,000) Pounds Sterling (an “Investor Claim”), the Company shall:
(a) as soon as reasonably practicable give written notice of the Investor Claim to Floww Markets, specifying in reasonable detail the nature of the claim;
(b) keep Floww Markets reasonably informed of the progress of the Investor Claim and of any material developments in relation to the Investor Claim;
(c) if requested by Floww Markets, provide to Floww Markets (at Floww Markets’ expense) copies of any material correspondence or other documents relating to the Investor Claim (subject to legal professional privilege and any obligations of confidence that are binding on the Company, its Affiliates or the Company’s Registered Users); and
(d) use reasonable endeavours to consult with Floww Markets regarding the conduct of the Investor Claim.
41.2 Without prejudice to Clause 41.1, the Company acknowledges and agrees that Floww Markets is not required to have any involvement in the negotiation, defence or settlement of an Investor Claim and, to the extent it is required to do so by Applicable Law or a Regulator, the Company hereby agrees to indemnify and hold Floww Markets harmless against any Losses incurred by it arising out of or in connection with such involvement.
42. NO PARTNERSHIP OR AGENCY
42.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
42.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
43. FORCE MAJEURE
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
44.1 Any communication to be given in connection with this Agreement shall be in writing, in the English language and sent by a Permitted Method to a Notified Address.
44.2 The “Permitted Method” means any of the methods set out in column (1) below. A notice given by the Permitted Method will be deemed to be given and received on the date set out in column (2) below.
(1) Permitted Method (2) Date on which notice deemed given and received
Delivered by hand on written acknowledgment or receipt by an officer or an employee of the receiving party
Pre-paid post or prepaid recorded or special delivery three (3) Business Days after the date of posting
Courier on production of evidence from the relevant courier that the notice was successfully delivered
E-mail two (2) hours after it was sent provided that no notification informing the sender that the message has not been delivered is received by the sender
Only in the case of a communication or delivery of information from Floww Markets to the Company, via Floww to the relevant account and/or portal to which the relevant recipient has access (including where such account and/or portal is password protected) at the time the communication is uploaded
44.3 The “Notified Address” of each of the parties (as amended in accordance with Clause 44.5) is as set out below:
(a) in the case of Floww Markets:
Address: Floww Markets Limited, MYO 123 Victoria Street, London, SW1E 6DA
E-mail address: Simon.email@example.com
Marked for the attention of: Simon Finch
(b) in the case of the Company, the contact details submitted using the functionality available on Floww from time to time.
44.4 If, under the preceding provisions of this Clause 44, a communication would otherwise be deemed to have been received outside normal business hours in the place of receipt, being 9:00 a.m. to 5:00 p.m. on a Business Day, it shall be deemed to have been received at 9:00 a.m. on the next Business Day.
44.5 A party may notify the other party of a change to its name, relevant person or address for the purposes of Clause 44.1, provided that such notification shall only be effective on:
(a) the date specified in the notification as the date on which the change is to take place; or
(b) if no date is specified or the date specified is less than five (5) Business Days after the date on which notice is deemed to have been served, the date falling five (5) Business Days after notice of any such change is deemed to have been given.
45. GOVERNING LAW AND JURISDICTION
45.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.
45.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). If a retail Investor lives in another part of the UK, any disputes may be brought in that part of the UK.