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Borrower Terms of Use

Please read these Terms and Conditions (“Terms”) carefully before using the https://www.fundkiss.mu or through any mobile application (the “Service”) operated by Fundkiss Technologies Limited (“FK”, “us”, “We”, or “our”).

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the Terms, then you may not access the Service.

1. INTRODUCTION

1.1 Use of this site constitutes agreement between You and Fundkiss Technologies Limited (“FK”, “us”, “we”, or “our”) on the following terms and conditions.

1.2 This agreement is governed by and interpreted under the laws of the Republic of Mauritius (“Mauritius”).

1.3 These Terms should be read alongside, and are in addition to, our privacy policy (accessible online at https://www.fundkiss.mu/privacy-policy).

1.4 You will be asked to enter into formal agreements with us if certain requirements are fulfilled. If there is a conflict between the formal agreements and these Terms, the formal agreements will prevail.

1.5 This site is intended for use by citizens of Mauritius. This site is not intended for distribution to, or use by, any person in a country where such distribution or use would be contrary to local laws or regulations.

2. BECOMING A BORROWER

2.1 To be a borrower on FK, you must meet the following criteria:

a) you must be an individual or any other legal entity;

b) if you are borrowing in your capacity as an individual you must be 18 years old or above;

c) if you are borrowing in your capacity as an individual you must be a Mauritius national or a permanent resident of Mauritius;

d) if you are a limited company, you must be registered with the Registrar of Companies;

e) if you are a societe or public body, you must be registered or formed with the relevant authority in Mauritius;

f) you must be actively trading (not dormant) as a business, and have actively traded (not been dormant at any time) for at least two years;

g) if you are a limited company, unless FK agrees otherwise:
(i) at least 50% of the directors of your business must be permanent residents of Mauritius; and
(ii) your centre of main interests must be in Mauritius

h) you must have, and maintain, a valid Mauritius bank account;

j) your business must not have any outstanding court judgments of more than MUR 20,000 (save that, FK reserves the right to list businesses as borrowers which have county court judgments in excess of MUR 20,000, from time to time and on a case by case basis if it considers it reasonable to do so); and

k) you must register your details on our website at https://www.fundkiss.mu/. Please note that some (but not all) of those details will be disclosed by us to potential lenders.

2.2 Borrowers must be in a business for profit and may not be public bodies, charities or trusts.

2.3 As part of the registration process we will need to authenticate the identity of the business and certain people authorised to act on its behalf. We may require you to send us copies of the relevant passports or other identification documents and other supporting documents that we may need. If you do not provide all requested documents, you will not be able to borrow on the FK platform.

3. CREATING A BORROWER’S ACCOUNT

3.1 On registering with us, you must create a Borrower Account and you must provide an email address and enter a password. Your Borrower Account will be used to access certain restricted parts of the platform. Each time you access your Borrower Account, you will need to enter your email address and password. Your username and password are unique to your Borrower Account and are not transferable without our prior written consent.

3.2 You are responsible for all information and activity on the platform by anyone using your username and password whether or not authorized by you. If you authorize an employee, sub-contractor, agent or other representative (including any intermediary) to use your Borrower Account you will be responsible for their activity on the platform. Any breach of security, loss, theft or unauthorized use of a username, password or security information must be notified to us immediately using the contact details provided on the website.

3.3 You agree not to adapt or circumvent the systems in place in connection with the platform, nor access our systems other than by using the credentials assigned to you and by following the instructions that we have provided for that type of connection.

3.4 We reserve the right not to act on your instructions where we suspect that the person logged into your Borrower Account is not you or we suspect illegal or fraudulent activity or unauthorised use.

4. BORROWING

4.1 You will have to formally enter into the following agreements:
(a) Escrow agreement
(b) If the required funding for a particular project has been met, a facility agreement.

4.2 FK may withdraw listed loan requests, at any time and for any reason. Any fund collected will be refunded to the lenders.

4.3 You cannot sell or assign your obligations in the loan.

4.4 You agree that you will not contact the lenders directly as FK will act as your liaison between you and the lenders.

5. DEFAULTS

5.1 You agree to contact us immediately if you believe that you may not be able to make one or more repayments under the facility agreement. If you miss a payment or only partially pay the amount due, we (ourselves or through an agent acting on our behalf) will contact you and ask you why you have missed a repayment, and we will attempt to collect the payment. We reserve the right to contact you by any method necessary including, without limitation, by letter, email, phone call, SMS or by sending private messages to your affiliated social media accounts. If our reattempt to collect the funds fails, 2 days after the payment was due your account will be treated as an overdue account, and we will continue to attempt to collect the funds.

5.2 If we agree a payment plan with you we may, at any time, verify the affordability of the payment plan by requesting information from you, which you will promptly provide, and by carrying out online checks made with credit reference agencies.

6. TERMINATIONS

6.1 You can only terminate your membership to the Service provided that you are not party to any active facility agreement.

6.2 We may end your membership of FK at any time if:
(a) You breach these Terms or are in breach of any regulatory requirements relating to your activity as an investor on the platform;

(b) You breach any agreement that you enter with us;

(c) We suspect that you have committed fraud, been involved in money laundering or other criminal activities;

(d) It comes to our attention that you have provided information to us which we subsequently find to be materially incorrect, inaccurate or false;

(e) You use the FK platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from FK;

(f ) You use the FK platform in any of the following ways:
(i) In any way that causes, or is likely to cause, the platform or access to it to be interrupted or damaged in any way;
(ii) For fraudulent purposes, or in connection with a criminal offence;
(iii) To send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any “spam”;
(iv) To cause annoyance, inconvenience or needless anxiety or in a way that restricts or inhibits anyone else’s use and enjoyment of the platform;
(v) For a purpose for which the platform is not intended or other than as a marketplace for lending to SMEs; or

(g) There is no activity in your borrower account within a 12 month period.

7. DISCLAIMERS

7.1 FK is giving no undertaking nor giving any warranty or representation as to:
(a) The ability of a borrower to pay; or
(b) a borrower’s credit risk.

7.2 FK is not liable in any manner whatsoever for the debts of borrowers.

7.3 Information on the platform does not constitute advice, recommendation or an endorsement of loan requests.

7.4 FK is making no representation nor giving any warranty as to the accuracy of the data displayed for loan requests, nor whether the information is up to date or error free.

7.5 FK does not guarantee that a given project will be successfully funded and allow your project to be fully funded, that there will be sufficient lenders for your project.

8. BORROWER’S CONVENANTS

8.1 You agree that you will not seek any financing for your project advertised on the platform from other lending platforms or other financial institutions.

8.2 You agree that once all financing for your project has been met, you will sign a direct debit instructing your bank to set up a direct debit for your repayments, you will provide a copy of the signed direct debit instruction to us.

8.3 You will promptly provide full details to FK upon you becoming aware of or suspecting that any change in your circumstances which might have an impact on the financing of your project have occurred or may occur, and will also provide FK with such information as it may reasonably require about your financial condition, business and affairs from time to time.

8.4 You agree that, for as long as there are outstanding amounts owed by you to lenders on the FK platform, you will provide to FK promptly on request by FK (or its agent):
(a) bank statements, up-to- date balance sheet and cash-flow statements, as well as other financial information as FK may require from time to time;
(b) details and documents relating to operational policies and procedures; and
(c) all relevant contracts or other documents that FK may require from time to time including any auditor reports, insurance documents, group structure charts and key contracts or agreements.

8.5 You agree that, for as long as there are outstanding amounts owed by you to lenders on the FK platform, you will permit employees or agents of FK on reasonable notice and during business hours to attend and inspect your premises and inspect any secured assets and any of your books, accounts and records and to make copies of any such information. You agree to meet with any such employee or agent within 15 days of request by FK, and answer all reasonable queries of such employee or agent.

8.6 If you are, or at any time become, aware of any current or future claim (or potential claim) by the Mauritius Revenue Authority (or any other governmental department or agency or other public body) against you, you may not accept a loan unless you have provided FK with full details of such claim (or potential claim) and we have agreed in writing that you are still eligible to

9. BORROWER’S REPRESENTATIONS

9.1 You warrant and represent to FK that:
(a) All information provided to us in the course of the application and borrowing process is true and accurate in all respects, and that you do not anticipate or reasonably expect any material change to such information in the 6 months following your acceptance of the loan; and
(b) You will not omit to tell us any information you are aware of that would materially impact on the decision of a lender to lend to you via the FK platform

9.2 You warrant and represent that you have not sought for financing of your project on offer on the platform from any other platforms or other financial institutions.

9.3 You agree that you will update us if any of the information you provide to us changes or is likely to materially change. If new or additional information comes to our attention which we believe would materially impact on the decision of a lender to lend to you or which would have resulted in a different outcome under our internal guidelines and policies when assessing your application, then we reserve the right to de-list your loan or to otherwise cease to process your loan application at all or any further.

9.4 You warrant and represent that you have disclosed to us any circumstances that you are aware of (including without limitation any claims, undisclosed liabilities, litigation, arbitration, court proceedings or investigations which are current, threatened, pending or otherwise reasonably likely to occur against you by any third party) which could or might result in a material adverse change in your financial condition, business or assets.

10. MISCELLANEOUS

10.1 The information provided on the platform is directed solely at and is for use solely by persons and organisations that meet the criteria set out in clause 2 above and the equivalent criteria set out in the terms and conditions applying to borrowers.

10.2 You are permitted to download and print content from this platform solely for your own personal use or in the course of your business to the extent required to use the services provided on this platform. FK supplied content must not be copied or reproduced, modified, redistributed, used or otherwise dealt with for any other reason without our express written consent.

10.3 We are not responsible for content downloaded or posted by lender or borrowers on the platform. We may edit certain content downloaded or posted on the platform in our discretion to clarify content or remove offensive material but are not obliged to do so.

10.4 We will endeavour to ensure that the FK platform is available for you to use at any time. However, this is not something we are able to guarantee and there may be times when the platform is not available. We will do our best to notify you via our website when we know this service will be unavailable. You can contact us when the FK platform is not available by emailing contact@fundkiss.mu or calling our customer service team on [xx].

10.5 You agree to use the platform only for lawful purposes and for the purposes set out in these Terms and in a way which does not infringe the rights of any anyone else or restrict or inhibit anyone else’s use and enjoyment of the platform.

10.6 You agree not to use the FK platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from FK.

10.7 You warrant that you have taken all reasonable precautions to ensure that any data you upload or otherwise submit to the platform is free from viruses and anything else which may have a contaminating or destructive effect on any part of the platform or any other technology.

10.8 The content and material available through the platform is for informational purposes only and should not be regarded as an offer, solicitation, invitation, advice or recommendation to buy or sell investments, securities or any other financial services or banking product. If you are unsure about whether a product is suitable you should contact an independent financial adviser.

10.9 You are responsible for all costs incurred by you in accessing the platform.

10.10 We accept no responsibility or liability for your use of content on the platform and such use is entirely at your own risk. While we take reasonable precautions to prevent the existence of computer viruses or other malicious programs on the platform, we accept no liability for them if they do exist. It is your responsibility to use, update and maintain appropriate antivirus software on your computer.

10.11 We take reasonable precautions to ensure that our systems are secure. However, information transmitted via our systems will pass over public telecommunications networks. We accept no liability if communications sent via the platform are intercepted by third parties or incorrectly delivered or not delivered.

10.12 The platform may contain links to external websites. We accept no responsibility or liability for any material supplied by or contained on any third party website which is linked from or to the platform, or any use of personal data by such third party.

11. PRIVACY

You agree that any and all personal information you provide to us via this platform may be collected, stored, processed and used in accordance with our then current privacy policy (accessible online at https://www.fundkiss.mu/privacy-policy).

12. INTELLECTUAL PROPERTY RIGHTS

12.1 Subject to clause 12.3 below, as between you and us, we own all present and future copyright, registered and unregistered trade marks (including the goodwill thereon), design rights, unregistered designs, database rights and all other present and future intellectual property rights and rights in the nature of intellectual property rights existing in or in relation to the platform.

12.2 If and to the extent that any such intellectual property rights vest in you by operation of law or otherwise, you agree to do any and all such acts and execute any and all such documents as we may reasonably request in order to assign such intellectual property rights (and associated goodwill) back to us.

12.3 You shall retain ownership of all copyright in data you upload or submit to the platform. You grant us a world-wide exclusive, royalty-free, perpetual, irrevocable license to use, copy, distribute, publish and transmit such data in any manner.

12.4 We do not warrant or represent that the content of the platform does not infringe the rights of any third party.

13. YOUR LIABILITY TO US

13.1 You shall be liable to us for any foreseeable loss or damage suffered by us as a result of:
a) any breach of these terms and conditions or any facility agreement by you;
b) any fraudulent use of the FK platform; and
c) any and all use of your username and password.

13.2 You shall not be liable to us for loss or damage which is not foreseeable.

14. OUR LIABILITY TO YOU

14.1 We shall be liable to you for any foreseeable loss or damage suffered by you as a result of :
a) any breach of these terms and conditions by us; and
b) our negligence, wilful default or fraud by us or our employees.

14.2 We shall not be liable to you for loss or damage which is not foreseeable or from circumstances that are beyond our reasonable control.

14.3 Nothing in these terms and conditions shall limit our liability for personal injury or death caused by our negligence, fraud, nor for any other liability the exclusion or limitation of which is not permitted by applicable law or regulation.

15. AMENDMENTS TO THESE TERMS AND CONDITIONS

15.1 We expect to need to update or amend these terms and conditions from time to time to comply with law or to meet our changing business requirements.

15.2 We may make changes to terms and conditions without your specific agreement where those updates are, in our reasonable opinion, of an immaterial and routine nature. We may not always be able to give you advanced notice of such updates or amendments but we will always post them on the platform so you can view them when you next log in. In these circumstances, by continuing to use the platform, or our services in allocating funds you have deposited, you agree to be bound by the amended terms and conditions.

15.3 These terms and conditions were last updated on 10 December 2017.

16. OTHER IMPORTANT TERMS

16.1 If any of these terms and conditions is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the remainder shall continue in full force and effect.

16.2 All disclaimers, indemnities and exclusions in these terms and conditions shall survive termination of the agreement between us for any reason.

16.3 We may, in whole or in part, release, compound, compromise, waive or postpone, in our absolute discretion, any liability owed to us or right granted to us in these terms and conditions without in any way prejudicing or affecting our rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.

16.4 No single or partial exercise, or failure or delay in exercising any right, power or remedy by us shall constitute a waiver by us of, or impair or preclude any further exercise of, that or any right, power or remedy arising under these terms and conditions or otherwise.

16.5 Please ensure that you read these terms and conditions carefully as these will bind you and govern your relationship with us and borrowers. If you are uncertain as to your rights under them or would like an explanation, please get in touch with us.

16.6 FK may exercise any of its rights under these terms and conditions by itself or through any company or other legal entity which is under the control or ownership of FK and each such entity can rely on these terms as though it were a party to this contract.

16.7 These terms and conditions are governed by the laws of Mauritius. In the event of any matter or dispute arising out of or in connection with these terms and conditions, you and we shall submit to the non-exclusive jurisdiction of the courts of Mauritius.

17. CLIENT MONEY

17.1 We shall treat money that we receive from the lenders during the fund raising as Client Money. Client Money held for the lenders will be subject to internal control mechanisms and proper accounting procedures. You are hereby notified, that we have elected to hold monies held in relation to lenders during the fund raising process in a segregated bank account that will be managed by FK.

17.2 We will make arrangements for the lenders’ money to be held in a segregated account separately from our own funds and maintained specifically for the lenders.

17.3 FK does not provide paper statements of client holdings. You can log into your accounts at any time and download a statement of your current facility agreements and see your activity on the platform and the schedule repayments.

17.4 We will not pay interest on balances held as Client Money.

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