Lender Terms of Use

Please read these Terms and Conditions (“Terms”) carefully before using the website at 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.

1.0 Introduction

1.1 Use of this site constitutes agreement between You and Fundkiss Technologies Limited (“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.

2.0 Becoming a Lender

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

2.1.1 you must be an individual or any other legal entity;

2.1.2 if you are lending in your capacity as an individual you must be 18 years old or above;

2.1.3 if you are lending in your capacity as an individual you must be a Mauritius national or a permanent resident of Mauritius;

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

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

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

2.1.7 you must register your details on our website at https://www.fundkiss.mu.

2.2 As a lender, you cannot also be a borrower on FK with loans outstanding, except where you are acting as the director or the proprietor of a business borrowing money and want to act as an lender in a different capacity.

3.0 Creating a lender Account

3.1 On registering with us, you must create a Lender Account and you must provide an email address and enter a password. Your Lender Account will be used to access certain restricted parts of the platform. Each time you access your Lender Account, you will need to enter your email address and password. Your username and password are unique to your Lender 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 authorised by you. If you authorise an employee, sub-contractor, agent or other representative (including any intermediary) to use your Lender Account you will be responsible for their activity on the platform. Any breach of security, loss, theft or unauthorised 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 Lender Account is not you or we suspect illegal or fraudulent activity or unauthorised use.

4.0 Lending

4.1 If you are a legal citizen, you can only lend a maximum of Rs 200,000 per project.

4.2 If you are a natural citizen, you can only lend a maximum amount of 10% of your annual income in any 12 month-period or a maximum of Rs 100,000 per project, whichever is lower.

4.3 You will have to formally enter into the following agreements:

4.3.1 Escrow agreement

4.3.2 If the required funding for a particular project has been met, a facility agreement.

4.4 FK reserves the right to:

4.4.1 place any restriction or condition on which Lenders lend funds; and

4.4.2 change the maximum or minimum amount a single investor is permitted to lend to a particular borrower (or in aggregate across the FK platform generally).

4.5 FK may withdraw listed loan requests, at any time and for any reason. Any fund collected will be refunded to the lenders. Subject to clauses 4.1 and 4.2, we may also change the minimum and maximum amounts that you can lend and will tell you about these changes via the platform.

4.6 You cannot sell or assign your part in the loan. If your share of the loan is distributed to another party as part of a liquidation or heritance, the other party would deemed to have accepted this Terms and the agreements.

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

5.0 Defaults

5.1 You agree that in the event of missed payments on a loan we will take the required administrative steps on your behalf. In certain circumstances, we may act outside and/or ahead of the following process to (a) pursue missed payments, (b) seek information from borrowers or otherwise engage with borrowers or (c) take steps to prevent the occurrence of missed payments or default, in each case where we consider this to be in the best interests of investors. We may recover our reasonable costs as a priority from any amount recovered.

5.2 If the loan is placed into default, FK will notify you (by way of note in your FK investor account or by email). In such a case, you agree to assign the right to sue the borrower to FK and allow them to take any action, including starting legal proceedings, on your behalf. We will investigate the amount of debt that is likely to be successfully recovered through the courts. If we deem it appropriate, we will instruct solicitors to file court claims to recover the debt. We will pay back to investors in their proportionate share any funds successfully recovered, less its costs incurred during that recovery and any relevant collections charges (subject to the 40% cap of outstanding amount). We will act in a fair and equitable manner to achieve maximum recovery for all affected lenders, which may include agreeing new payment terms.

6.0 Termination

6.1 You can only terminate your membership to the Service provided that you do not have any fund in an escrow account set up for a live project posted on the FK platform or are not party to any active facility agreement.

6.1.1 We may end your membership of FK at any time if: you breach these Terms or are in breach of any regulatory requirements relating to your activity as an investor on the platform; you breach any agreement that you enter with us; we suspect that you have committed fraud, been involved in money laundering or other criminal activities; it comes to our attention that you have provided information to us which we subsequently find to be materially incorrect, inaccurate or false;

6.1.2 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;

6.1.2 you use the FK platform in any of the following ways: in any way that causes, or is likely to cause, the platform or access to it to be interrupted or damaged in any way; for fraudulent purposes, or in connection with a criminal offence; 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”; to cause annoyance, inconvenience or needless anxiety or in a way that restricts or inhibits anyone else’s use and enjoyment of the platform; for a purpose for which the platform is not intended or other than as a marketplace for lending to SMEs; or there is no activity in your lender account within a 12 month period.

7.0 Disclaimers

7.1 FK is giving no undertaking nor giving any warranty or representation as to:

7.1.1 the ability of a borrower to pay; or

7.1.2 a borrower’s credit risk.

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

7.1.4 Calculations provided on the Service of the likely rate of return on loans are for reference purposes only and are not guaranteed by us.

7.1.5 Information on the platform does not constitute advice, recommendation or an endorsement of loan requests or borrowers and that the information is not intended to be relied upon as a sole basis for deciding whether or not to lend to a particular business.

7.1.6 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.

7.1.7 FK does not guarantee that a given project will be successfully funded and allow your funds to be lent out, that there will be sufficient borrowers for you to lend to.

8.0 Lender’s Representations

8.1 If you are:

8.1.1 a legal person, such as a company, you will not lend more than Rs 200,000 per project;

8.1.2 a natural person, you will not lend an amount in excess of 10% of your annual income in any 12-month period or a maximum of Rs 100,000 per project, whichever is lower.  

8.1.3 You acknowledge that you have not placed sole reliance on the information provided on the Service and have sought independent advice and have exercised independent judgment of mind before becoming a lender on the Service.

9.0 Miscellaneous

9.1 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.

9.2 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.

9.3 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.

9.4 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 [email protected] or calling our customer service team on +230 59 42 20 18.

9.5 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.

9.6 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.

9.7 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.

9.8 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.

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

9.10 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.

9.11 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.

9.12 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.

10.0 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).

11.0 Intellectual property rights

11.1 Subject to clause 11.3 below, as between you and us, we own all present and future copyright, registered and unregistered trademarks (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.

11.2 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.

11.3 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 licence to use, copy, distribute, publish and transmit such data in any manner.

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

12.0 Your liability to us

12.1 You shall be liable to us for any foreseeable loss or damage suffered by us as a result of:

12.1.1 any breach of these terms and conditions or any facility agreement by you;

12.1.2 any fraudulent use of the FK platform; and

12.1.3 any and all use of your username and password .

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

13.0 Our liability to you

13.1 We shall be liable to you for any foreseeable loss or damage suffered by you as a result of :

13.2 any breach of these terms and conditions by us; and

13.3 our negligence, wilful default or fraud by us or our employees.

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

13.5 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.

14.0 Amendments to these terms and conditions

14.1 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.

14.2 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.

14.3 These terms and conditions were last updated on 20 November 2017.

15.0 Other important terms

15.1 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.

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

15.3 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.

15.4 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.

15.5 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.

15.6 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.

15.7 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.

16.0 Client Money

16.1 We shall treat money that we receive from you or hold on your behalf during the fund raising as Client Money. Client Money held for you 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.

16.2 We will make arrangements for your money to be held in a segregated account separately from our own funds and maintained specifically for you and the other lenders. Your money may be held with other members’ money in a pooled account and you consent to such pooling. We will not be responsible for any acts, omissions or default of any bank with which your money is held and in the event of insolvency of such bank, we would not be liable for any shortfall unless we had failed to comply with any duty of care or obligation to which we were subject.

16.3 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 scheduled repayments.

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

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