Website Terms and Conditions
1.2. By agreeing to these Terms you appoint us as your agent to conclude a separate and direct agreement between you and each project you support, in the form set out in the Schedule.
1.4. Your use of this site constitutes acceptance of these Terms, which take effect on the date of your first use of the Site.
1.5. In these Terms the expression:
1.5.1. “Backer” shall mean any person registered on this Site as a supporter of a Project.
1.5.2. “Donation” shall mean a contribution to a Project.
1.5.3. “The People’s Fund” shall mean the entities administering the platform.
1.5.4. “Reward” shall mean any product or service provided by a project in return for a Backer’s support for a Project.
1.5.5. “Non-cash Reward” shall mean any non-cash incentive (such as goods, services or events) offered by a project in return for a Backer’s support for a Project.
1.5.6. “Project” shall mean any organisation or initiative listed on this Site for which a Project wishes to gather Support.
1.5.7. “Support” shall mean any funds or other support provided by you to a Project, through this Site to support a Project including gifts or loans.
2.1. The People’s Fund reserves the right to change these Terms at any time. Your continued use of this Site after changes are posted online constitutes your acceptance of the Terms as modified.
- Interruptions, errors and omissions
3.1. Whilst all reasonable endeavours will be made to ensure the maintenance and availability of this Site, The People’s Fund does not accept liability arising from any errors, omissions, interruptions of service or delays that may occur in connection with this Site.
3.2. There may be times when our online services are unavailable due to planned maintenance. We will try to inform you in advance of any such suspension through a general notice on this Site but this may not always be practicable.
3.3. We may vary the specification of this Site from time to time without notice.
4.1. There is no minimum age requirement for registering to use this Site.
5.1. Those who wish to register to use this Site will be required to create a username and password. This information is personal, not transferable and must not be shared with anyone. You acknowledge that you are responsible for all information and activity on this Site by anyone using your username and password.
5.2. Any breach of security or unauthorised use of a username, password or security information must be reported to The People’s Fund immediately.
5.3. The People’s Fund reserves the right not to act on your instructions if it reasonably suspects that the person logged into you’re The People account is not you or it suspects unauthorized use or fraudulent activity.
- Acceptable use
6.1. You must ensure that all information supplied by you is true, accurate, and up-to-date at all times.
6.2. You agree to use this Site only for lawful purposes and in a manner which does not infringe the rights or restrict or inhibit the use and enjoyment of the site by any third party.
6.3. You are solely responsible for any information submitted by you to this Site. You hereby agree that any content posted by you on the Site will not:
6.3.1. be misleading;
6.3.2. break any law or encourage an illegal act;
6.3.3. be defamatory, abusive or offensive;
6.3.4. infringe the copyright, privacy, confidentiality or other right of any third party;
6.3.5. contain software viruses or any other computer code, files or programs designed to
affect the use of any computer software or hardware or telecommunications network; and/or
6.3.6. bring The People’s Fund or the The People’s Fund website into disrepute.
6.4. You must not under any circumstances seek to undermine the security of the Site or any information submitted to or available through it.
6.5. You agree to indemnify us and keep us indemnified against all costs, expenses, claims, losses, liabilities or proceedings arising from misuse by you of this Site.
6.6. While this Site is intended for South African residents, it may be used by residents of other jurisdictions. Users of this Site in jurisdictions outside South Africa should be aware of, and observe, all applicable legal requirements in their jurisdictions. In particular, users should ensure that they are able to use this Site without contravention of legal restrictions in the jurisdiction in which they reside.
6.7. You are responsible for ensuring that all persons who access this Site through your internet connection are aware of these Terms, and that they comply with them.
- Limitations of liability
7.1. While every effort has been taken to ensure that all content is correct and not misleading, The People’s Fund cannot and does not verify all of the information contained on this Site. Projects are fully responsible for the accuracy of the information disclosed on this Site in relation to Projects and it is your sole responsibility to verify the information. The People’s Fund therefore accepts no liability, either express or implied, for any direct, indirect or consequential loss suffered due to the accuracy or completeness of information contained on the Project pages of this Site. This limitation includes, but is not restricted to:
7.1.1. loss of income or revenue;
7.1.2. loss of business;
7.1.3. loss of profits or contracts;
7.1.4. loss of anticipated savings;
7.1.5. wasted expenditure or time;
7.1.6. loss of goodwill;
7.1.7. or other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, whether foreseeable or not.
7.2. The People’s Fund hereby excludes all representations, warranties and conditions relating to this Site and your use of it to the maximum extent permitted by law.
8. Liability for loss of or damage to property and death or personal injury
8.1. The People’s Fund is not responsible for ensuring that activities and events organised by Projects are covered by appropriate insurance. By participating in such activities or events you acknowledge that The People’s Fund is not liable for any loss of or damage to personal property that may occur.
8.2. Notwithstanding any other provision of these Terms, The People’s Fund does not purport to exclude or restrict its liability for fraud or for any death or personal injury which may be caused by its actions.
9. Links to other sites
9.1. The Site contains links to websites of other charities and organisations. The links are provided for your convenience only. The People’s Fund does not approve or endorse any third party or its website and takes no responsibility for the content or security of such sites. The People’s Fund accepts no liability for any direct, indirect or consequential loss you may suffer as a result of the use of websites owned or operated by third parties.
9.2. Furthermore, The People’s Fund will not be party to or in any way responsible for any agreement or transaction concluded between you and any such third party website owner or operator.
10.1. You are responsible for ensuring that all information, data and files are free of viruses and do not interfere with any system or data prior to being submitted to this Site.
10.2. Whilst The People’s Fund makes all reasonable attempts to exclude viruses from this Site, we do not accept responsibility for any loss, disruption or damage to your data or your computer system that may occur whilst using this Site. You are strongly recommended to take all appropriate safeguards before using this Site.
11.1. All materials on this Site are owned by and subject to the copyright of The People’s Fund , affiliated Projects or third parties.
11.2. No part of this Site, including information, images, photos, logos, names or icons may be copied, republished, posted, or reproduced in any form whatsoever without the prior written permission of the copyright holder. You are, however, permitted to access, copy and reproduce materials for your personal non-commercial use only.
11.3. You retain copyright and any other rights you already hold in content which you submit, post or display on or through this Site. By submitting, posting or displaying the content you give The People’s Fund a continuous, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, publicly display and distribute any content which you submit to the Site, unless otherwise agreed in writing between you and The People’s Fund.
This Agreement does not constitute financial advice in anyway. Any and all projections made are based on historical yields and data. Buying investment assets of any kind or class that will be managed by a small business is risky and you should only commit money you are prepared to lose.
THIS GLOBAL CUSTODIAL SERVICES AGREEMENT is concluded between yourself, the asset buyer (the “Client “) and TPF Global Investments (Pty) Ltd, a company incorporated in terms of the laws of the Republic of South Africa with registration number (Registration No.: 2017 / 438248 / 07) (the “Custodian”).
The Custodian operates an Asset crowd funding platform on which a number of Campaigns are listed, from time to time, to raise funding required to purchase Assets required by the entrepreneurs on whose behalf Campaigns are created.
The Client is willing to take part in these opportunities, and shall so direct the Custodian through its Instructions.
“Asset” means any assets purchased by the Client from an entrepreneur through the Custodian on the terms of this Agreement.
“Authorized Person” means the Client or any person (including any individual or entity) authorised by the Client in writing to act on its behalf in the performance of any act, discretion or duty under this Agreement (including, for the avoidance of doubt, any officer or employee of such person) in a notice reasonably acceptable to the Custodian.
“Campaign” means any campaign that is on the Custodian’s platform from which the Client or Authorized Person can select for the purposes of issuing an Instruction/s to purchase an Asset/s.
“Fee” means 10% (ten percent) of the total profit earned by the Asset after its purchase and before the deduction of any costs, Taxes and or other duties required to be deducted therefrom.
“Instructions” means any and all instructions (including approvals, consents and notices) received by the Custodian from, or reasonably believed by the Custodian to be from, any Authorised Person, including any instructions communicated through any manual or electronic medium or system agreed between the Client and the Custodian.
“Taxes” means all taxes, levies, imposts, charges, assessments, deductions, withholdings and related liabilities, including additions to tax, penalties and interest imposed on or in respect of (i) cash, (ii) the transactions effected under this Agreement or (iii) the Client.
- PURCHASE OF ASSETS
- The Client authorises the Custodian to, pursuant to the terms of this Agreement, receive cash from the Client and purchase Assets on behalf of the Client, which Assets shall be kept in custody by the Custodian. These Assets will be connected to Campaigns that are running on the Custodian’s platform.
- The Custodian will determine in its reasonable and sole discretion whether to accept further amounts of cash to purchase further Assets and keep such Assets in Custody on behalf of the Client.
- The Assets will be in the name of the Client or such other name as the Client may reasonably designate and will indicate that the Assets do not belong to the Custodian and are segregated from the Custodian’s assets.
- To the extent necessary and reasonably practicable, where the Client cannot be designated as the Asset holder, the Custodian will hold Client’s Assets in its name solely for the benefit of the Client. The Custodian shall ensure that it keeps a register to identify on its books those Assets that are held for the account of the Client in the name of the Custodian.
- Any Assets held by the Custodian in its name on behalf of the Client will be subject only to the instructions of the Custodian provided that such instructions are subject only to the instructions of the Authorised Person and or the Client.
- RISK OF INVESTING
3.1 The Client shall bear the risk and expense associated with investing in the Assets.
4.1 The Custodian is entitled to rely and act upon Instructions of any Authorised Person until the Custodian has received notice of any change from the Client and has had a reasonable time to note and implement such change. The Custodian is authorised to rely upon any Instructions received by any means, provided that the Custodian and the Client have agreed upon the means of transmission and the method of identification for the Instructions. In particular: [not sure what was to follow here]
4.2 Should a Campaign not be completed, and it requires full commitment for it to be taken to the next level, the Custodian will inform the Client of that and advise the Client of other Campaigns to take advantage of. In the event that the Client does not want to take advantage of available Campaigns, the Client will be refunded the amount paid in at that time. For purposes of clarity, each Campaign has a given target. This refund would only be applicable where a Campaign has failed to reach its targeted amount.
- CUSTODY PROCEDURES
- The Custodian is not obliged to make payment to the Client before receipt by the Custodian of payment in respect of any profits relating to the Assets. If the Custodian makes a payment to the Client before such receipt, the Custodian may at any time reverse all or part of the payment (including any interest thereon), alternatively, require repayment of any amount corresponding to any payment.
- The Client and the Custodian will comply with the procedures designed to verify the origination of Instructions.
- The Custodian is not responsible for errors or omissions made by the Client or resulting from fraud or the duplication of any Instruction by the Client.
- The Custodian may act on an Instruction if it reasonably believes it contains sufficient information.
- The Custodian may decide not to act on an Instruction where it reasonably doubts its contents, authorisation, origination or compliance with any procedures and will promptly notify the Client of its decision.
- If the Custodian acts on any Instruction sent manually (including facsimile or telephone), then, if the Custodian complies with the security procedures, the Client will be responsible for any loss the Client may incur in connection with that Instruction. The Client expressly acknowledges that the Client is aware that the use of manual forms of communication to convey Instructions increases the risk of error, security and privacy issues and fraudulent activities.
- The Custodian is obligated to act on Instructions only within 5 business days of having received an Instruction from the Client.
- The Custodian shall carry out the following actions:
- identify business that the customer can invest in;
- deal with rights and other similar interests or any other discretionary right in connection with the Assets; and
- make payment for and/or order any Assets or dispose of any Assets except as otherwise specifically provided for in this Agreement;
- carry out any action affecting Assets in the custody of the Custodian other than those specified in Clause 6.2 below, but in each instance subject to the agreement of the Client.
- Absent a contrary Instruction, the Custodian shall carry out the following without further Instructions:
- in the Client’s name or on its behalf, sign any affidavits, certificates of ownership and other certificates and documents relating to the Assets which may be required (i) to obtain any Asset (ii) by any tax or regulatory authority;
- collect, receive, and/or credit the Client, as appropriate, with all income, payments and distributions in respect of the Assets and any capital arising out of or in connection with the Assets (including all Assets held by the Custodian for the benefit and on behalf of the Client) and take any action necessary and proper in connection therewith;
- provide receipts for Assets held by the Client;
- notify the Client of notices, circulars, reports and announcements which the Custodian has received, in the course of acting in the capacity of custodian, concerning the Assets held on the Client’s behalf that require discretionary action; and
- attend to all non-discretionary matters in connection with the Assets.
- TAX STATUS/WITHHOLDING TAXES
- The Client will provide the Custodian, from time to time and in a timely manner, with information and proof (copies or originals) as the Custodian reasonably requests, as to the Client’s and/or the underlying beneficial owner’s tax status or residence. Information and proof may include, as appropriate, executing certificates, making representations and warranties, or providing other information or documents in respect of the Assets, as the Custodian deems necessary or proper to fulfill obligations under applicable law.
- If any Taxes become payable with respect to any payment to be made to the Client, such Taxes will be payable by the Client and the Custodian may withhold the Taxes from such payment. The Custodian may withhold any monies held or received with respect to the Assets and apply such monies in satisfaction of such Taxes. If any Taxes become payable with respect to any prior payment made to the Client by the Custodian, the Custodian may withhold any monies in satisfaction of such prior Taxes. The Client shall remain liable for any deficiency.
- The Custodian shall not, under any circumstances, be responsible, or liable, for any Taxes resulting from the Assets, or for the failure of the Client or beneficial owner to make any payments to any authority, against any income tax liability.
- USE OF THIRD PARTIES
- The Custodian is hereby authorised to appoint sub custodians and administrative support providers as its delegates and to perform any of the duties of the Custodian under this Agreement.
- Sub custodians are those persons utilised by the Custodian for the safe-keeping, of Assets where necessary and or applicable.
- Administrative support providers are those persons utilized by the Custodian to perform ancillary services of a purely administrative nature such as couriers, messengers or other commercial transport systems.
- Market infrastructures are public utilities, external telecommunications facilities and other common carriers of electronic and other messages, and external postal services. Market infrastructures are not delegates of the Custodian.
- The Custodian shall act in good faith and use reasonable care in the selection and continued appointment of sub custodians and administrative support providers.
- The Client and the Custodian each represents at the date this Agreement is entered into and any custodial service is used or provided that:
- It is duly organised and in good standing in every jurisdiction where it is required so to be;
- It has the power and authority to sign and to perform its obligations under this Agreement;
- This Agreement is duly authorised and signed and it is legal, valid and binding obligation;
- Any consent, authorisation or instruction required in connection with its execution and performance of this Agreement has been provided by any relevant third party;
- Any act required by any relevant governmental or other authority to be done in connection with its execution and performance of this Agreement has been or will be done (and will be renewed if necessary); and
- Its performance of this Agreement will not violate or breach any applicable law, regulation, contract or other requirement.
- The Client also represents at the date this Agreement is entered into and any custodial service is used or provided that:
- It has authority to purchase the Assets;
- Where it acts as an agent on behalf of any of its own customers, whether or not expressly identified to the Custodian from time to time, any such customers shall not be customers or indirect customers of the Custodian; and
- It has not relied on any oral or written representation made by the Custodian or any person on its behalf.
- SCOPE OF RESPONSIBILITY
- The Custodian shall exercise the due care of a professional custodian for hire.
- The Custodian will not be responsible for any loss or damage suffered by the Client unless the loss or damage results from the Custodian’s negligence, wilful misconduct or fraud or the negligence, wilful misconduct or fraud of its nominees or any sub custodian or administrative support provider; in the event of such negligence or wilful misconduct the liability of the Custodian in connection with the loss or damage will not exceed (I) the lesser of replacement of any Assets or the market value of the Assets to which such loss or damage relates at the time the Client reasonably should have been aware of such negligence or wilful misconduct. Under no circumstances will the Custodian be liable to the Client for consequential loss or damage, even if advised of the possibility of such loss or damage.
- The Custodian is responsible for the performance of only those duties as are expressly set forth herein, including the performance of any Instruction given in accordance with this Agreement. The Custodian shall have no implied duties or obligations.
- The Client understands and agrees that (i) the obligations and duties of the Custodian will be performed only by the Custodian and are not obligations or duties of any other person or organisation of the Custodian (including any branch or office of the Custodian) and (ii) the rights of the Client with respect to the Custodian extend only to such Custodian and, except as provided by law, do not extend to any other member of the Custodian.
- Except as provided in clause 2 hereof, the Custodian is not responsible for the acts, omissions, defaults or insolvency of any third party including, but not limited to, any broker, counterparty or issuer of Assets.
- The Client understands and agrees that the Custodian’s performance of this Agreement is subject to the relevant local laws, regulations, decrees, orders and government acts as exist from time to time.
- The Custodian will not be responsible for any failure to perform any of its obligations if such performance is prevented, hindered or delayed by a Force Major Event, and in such case its obligations will be suspended for so long as the Force Major Event continues. “Force Major Event” means any event due to any cause beyond the reasonable control of the Custodian, such as fire, flood, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war or acts of government.
- The Client shall be solely responsible for all filings, tax returns and reports on any transactions in respect of the Assets or relating to the Assets as may be required by any relevant authority, whether governmental or otherwise.
- The Custodian is not acting under this Agreement as an investment manager, nor as an investment, legal or tax adviser to the Client, and the Custodian’s duty is solely to act as a Custodian in accordance with the terms of this Agreement.
- The Custodian is not responsible for the form, accuracy or content of any notice, circular, report, announcement or other material provided under this Agreement not prepared by the Custodian including the accuracy or completeness of any such forwarded communication.
To the extent permissible by law or regulation and upon the Client’s request, the Client shall be subrogated to the rights of the Custodian with respect to any claim for any loss, damage or claim suffered by the Client, in each case to the extent that the Custodian fails to pursue any such claim or the Client is not made whole in respect of such loss, damage or claim. Notwithstanding any other provision hereof, in no event is the Custodian obliged to sue in its own name or to allow suit to be brought in its name.
The Client agrees to indemnify the Custodian and to defend and hold the Custodian harmless from all losses, costs, damages and expenses (including reasonable legal fees) and liabilities for any claims, demands or actions (each referred to as a “Loss”), incurred by the Custodian in connection with this Agreement, except any Loss resulting from the Custodian’s negligence, wilful misconduct or fraud. Under no circumstances will the Client be liable to the Custodian for consequential loss or damage, even if advised of the possibility of such loss or damage. The disclosure by the Client to the Custodian that the Client has entered into this Agreement as the agent or representative of another person shall not relieve the Client of any of its obligations under this Agreement.
- LIEN AND SET OFF
- In addition to any other remedies available to the Custodian under applicable law, the Custodian shall have, and the Client hereby grants, a continuing general lien on all Assets to the extent the Custodian has made payment for any Assets at any time.
- To the extent permitted by applicable law and in addition to any other remedies available to the Custodian under applicable law, the Custodian may, without prior notice to the Client, set off any payment obligation owed to it by the Client in connection with all liabilities arising under this Agreement against any payment obligation owed by it to the Client under this Agreement.
The Client agrees to pay 10% (ten percent) of the total profit made by the Client towards all fees, charges and obligations incurred from time to time for any services pursuant to this Agreement, which may be changed from time to time by the Custodian upon prior written notice to the Client, together with any other amounts payable to the Custodian under this Agreement.
- RECORDS AND ACCESS
The Custodian shall allow the Client and its independent public accountants, agents or regulators reasonable access to the records of the Custodian relating to Assets as is required by the Client in connection with an examination of the books and records pertaining to the affairs of the Client and will seek to obtain such access from each sub custodian where applicable and necessary.
The Custodian will treat information related to the Client as confidential but, unless prohibited by law, the Client authorises the transfer or disclosure of any information relating to the Client to and between the branches, subsidiaries, representative offices, affiliates and agents of the Custodian and third parties selected by any of them, wherever situated, for confidential use in connection with the provision of services to the Client (including for data processing, statistical and risk analysis purposes), and further acknowledges that any such branch, subsidiary, representative office, affiliate, agent or third party may transfer or disclose any such information as required by any law, court, regulator or legal process. The Client will treat the terms of this Agreement, including any Fees, as confidential.
- Any party may terminate this Agreement in whole or as between itself and the other parties hereto by giving not less than sixty (60) days’ prior written notice to such other parties.
- The Custodian shall deliver payment relating to the Assets as instructed by the Client. If by the termination date the Client has not given instructions to pay, the Custodian will continue to safe keep such Assets and/or Cash until the Client provides instructions to effect a free delivery of such. However, the Custodian will provide no other services as regard to any such Assets except to collect and hold any cash distributions. Notwithstanding termination of this Agreement or any Instruction, the Custodian may retain sufficient Assets to close out or complete any transaction that the Custodian will be required to settle on the Client’s behalf.
- The rights and obligations contained in Sections 7, 10, 12, 13, 17 and 18 of this Agreement shall survive the termination of this Agreement.
- GOVERNING LAW AND JURISDICTION
- This Agreement shall be governed by and construed in accordance with the laws of the country in which the Custodian is located and performs its obligations hereunder.
- The courts of the country in which the Custodian is located and performs its obligations hereunder shall have non-exclusive jurisdiction to hear any disputes arising out of or in connection with this Agreement, and the parties irrevocably submit to the jurisdiction of such courts.
- Neither Party shall be bound by any express nor implied term, representation, warranty, promise or the like, not recorded herein.
- The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.
- If any clause or terms of this Agreement should be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity or Illegality goes to the root of this Agreement.
- This Agreement together with the Schedules hereto constitutes the entire agreement between the Parties in regard to the subject matter thereof.
- No Party shall have any claim or right of action arising from any express or implied undertaking, promise, representation or warranty not recorded therein.
- No failure by a Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way a Party’s right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself.
- No agreement to vary, add to or cancel this Agreement shall be of any force and effect unless reduced to writing and signed by or on behalf of the Parties to this Agreement.
- No indulgence which any Party (the “grantor”) may grant to the other Party (the “grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby, be precluded from exercising any rights against the grantee which might have arisen.
- The Parties shall bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.
- This Agreement may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.
ASSET MANAGEMENT AGREEMENT
Between any company crowd funding on ww.thepeople.co.za
from here on referred to as the “the Entrepreneur”
TPF Global Investments (pty) limited
Company registration number: 2017/438248/07
- BASIS OF AGREEMENT AND INVESTMENT
- Whereas TPF owns and manages a digital asset crowdfunding platform that seeks to assist selected businesses raise funds for the sole purpose of procuring assets to help expand their businesses;
- Whereas TPF is desirous to use this crowdfunding platform to assist selected businesses with the purchase of Assets for the benefit of the Entrepreneur’s business who will manage such Assets , and realise a profit therefrom; and
- The Entrepreneur has a business requiring Assets and is suitably equipped and qualified to offer the required asset management services for purposes of managing Assets purchased by TPF; and
- TPF hereby invests in Assets equivalent to the value of its investment and appoints The Entrepreneur to manage the Assets in an effort to realise a profit; and
- The Entrepreneur hereby accepts such appointment and undertakes to manage the Assets and do all things necessary in the normal course of its business in order for TPF to realise a profit from its investment in such Assets;
- TPF acts on the instructions of its clients and as the custodian of Assets it purchases on behalf and for the benefit of its clients in investing in the Assets, and whom understand the potential risks therein, and TPF acts independently in performing obligations in terms of this Agreement and no partnership or joint venture is created by this Agreement.
The Parties are the company crowdfunding on “TPF” (and The People’s Fund a company registered in accordance with the laws of the Republic of South Africa having its principle place of business at 138 west street, sandown, sandton, 2196
- DUTIES AND OBLIGATIONS
3.1. TPF shall make payment of an amount equivalent to 90% of the money raised on the crowdfunding platform behalf of the Entrepreneur (the “Investment Amount”) to the Entrepreneur’s preferred asset supplier for and in respect of the Assets. Such payment shall only be made at the end of a campaign;
3.2 The investment cycle is for a period as stipulated on the campaign page (“Maintenance Period”) and in such period, the Entrepreneur shall maintain and manage the Assets and do any and all such things necessary to place TPF in a position to realise a profit from the investment in such Assets;
3.3 The Entrepreneur undertakes to do any and all such things as requested by TPF in order to support TPF’s endeavors to realise a profit from its investment in the Assets;
3.4 The Entrepreneur shall pay TPF a royalty quarterly to reduce its indebtedness in respect of the investment amount paid for the Assets purchased for investment;
3.5 The Entrepreneur shall pay TPF a profit calculated in accordance with the terms of clause 9 of this Agreement quarterly at the end of the Maintenance Period.
Notwithstanding the date of signature hereof, this Agreement shall commence on the date upon which The Entrepreneur and/or asset supplier gives written confirmation of receipt of the Investment Amount into the asset supplier’s bank account and shall, subject at all times to the further provisions of this Agreement, continue for a period as stated on the campaign page unless terminated in accordance with the terms of clause 11;.
- DUTIES OF EACH OF THE PARTIES
5.1 The Entrepreneur shall:
5.1.1 manage TPF’s Assets;
5.1.2 regularly report to TPF on the performance of the Assets purchased;
5.1.3 ensure timeous payment of royalties quarterly over the Maintenance Period;
5.1.4facitiltate the sale of the Assets; and
5.1.5 manage all costs and expenses relating to the purchase and maintenance of the Assets including, the application of any profits to further Assets in accordance with TPF’s instructions;
5.1.6 procure insurance sufficient to replace the Assets;
5.1.7 provide any and all information and documentation required by the Entrepreneur;
5.1.8 comply with any and all instructions required by TPF in order to effectively manage the Investor’s assets;
5.1.9 be responsible for the payment of the royalty to TPF for purposes of reducing the Entrepreneur’s indebtedness to TPF’s clients in respect of the Investment Amount, as well as any and all other costs associated with the purchase of the Assets for purposes of investing in and realising a profit therefrom.
5.2 TPF shall:
5.2.1 pay the Investment Amount, and
5.2.2 provide any and all information and documentation required by the Entrepreneur; and
5.2.3 comply with any and all instructions required by TPF in order to effectively manage the Investor’s assets; and
5.2.4 be responsible for the payment of the royalty to its Clients for purposes of reducing the Entrepreneur’s indebtedness in respect of the Investment Amount, as well as any and all other costs associated with the purchase of the Assets for purposes of investing in and realising a profit therefrom and and
5.2.5 audit the Entrepreneur quarterly.
- LIABILITY AND INDEMNITY
6.1 The Entrepreneur hereby indemnifies TPF from and against any and all liabilities, losses, claims and demands by reason of any liability imposed or claimed to be imposed upon TPF and/or the Entrepreneur by third parties in respect of damages arising from any of the services provided by the Entrepreneur in terms of this Agreement and or the management of TPF’s Assets by the Entrepreneur; Provided that any proven liability shall be limited to the value of the Investment Amount or any insurance monies paid to the Entrepreneur, whichever is more, less all management costs for the period of investment within the cycle period of the investment and then only in proportion to the TPF’s Asset equivalent in the Entrepreneur’s business.
6.2 The Entrepreneur indemnifies TPF against actions, suits, demands, costs or expenses arising in connection with the management of the Assets, either at common law or in terms of any applicable legislation, or otherwise caused by or incidental to the negligence or default of the Entrepreneur or its employees, agents, workmen or subcontractors, or the non-compliance by the Entrepreneur or subcontractors with the terms of the Agreement; Provided that such liability shall be limited to the value of the Investment Amount or any insurance monies paid to the Entrepreneur, whichever is the lesser, less all management costs for the period of investment and then only in proportion to TPF’s Asset equivalent in the Entrepreneur’s business.
6.3 The Entrepreneur shall not be liable to TPF for:
6.3.1 Any indirect, consequential, incidental or contingent damages, including but not limited to loss of profit or loss of production provided that such loss and/or losses do not arise as a result of a breach of this Agreement or negligence on its/ their part; or
6.3.2 Any loss or damage arising from force majeure as defined in the Agreement.
7.1 TPF hereby acknowledges that the risk of loss arising from investing in the Assets can be substantial and has carefully considered whether such investments are suitable in the light of TPF’s circumstances and financial resources and invests in the Assets at its own risk.
- DISTRIBUTION OF PROFITS AND PAYMENTS
8.1 The profits from the sale of Assets shall be distributed as follows to TPF (as custodians of the assets, subject to the further distribution of such profits in terms of an agreement concluded between TPF buyers of Assets in terms thereof; and
8.2 The profits shall be paid to TPF at the end of every quarter of the cycle period into the following bank account:
Name: TPF Global Investments
Acc No: 62730258226
Branch Code: 250655
Branch: Southgate Branch
Should a Party breach any provision of this Agreement and remain in breach for a period of 7 (Seven) Days after receipt of a written notice from the other Party (The ‘Innocent Party’) calling upon it to rectify the breach, the Innocent Party shall be entitled to cancel this Agreement without prejudice to any claim that it may have arising out of such breach or the premature termination of this Agreement or otherwise.
10.1 In the event of:
10.1.1 the Entrepreneur failing to make payment on time or as agreed in terms of this Agreement; or
10.1.2 either parties’ death, insolvency, a proposal to assign to creditors for settlement of debts, the making or offers to make any assignment with their creditors for releasing wholly or partly from debts, or if execution is levied by virtue of any judgment, or if any act of insolvency is committed, or being a legal entity either of them are placed under judicial management, or commences to be wound up not being merely a voluntary liquidation for the purpose of reconstruction (all of which are deemed to be events of breach);
then either party may, without prejudice to any of its other rights under this Agreement and irrespective of any other remedy which might be available to it under any of the provisions of this Agreement or in law, be entitled to immediately terminate this Agreement.
10.2 The termination shall come into effect immediately on delivery of a termination notice to the other party.
- TERMINATION BY NOTICE
11.1 Notwithstanding any provision of this Agreement, either Party shall have the right to terminate this Agreement for any reason at any time by giving the other 30 (thirty) days written notice of cancellation calculated from the date of delivery thereof.
11.2 The Entrepreneur shall continue to perform fully in terms of this Agreement during the notice period and/or until all its financial obligations in terms of this Agreement are fulfilled, but shall not incur any unauthorised cost.
- CONSEQUENCES OF TERMINATION
12.1 In the event of termination of this Agreement, TPF shall immediately on date of termination cease all activities relating to the Agreement or the part thereof so terminated.
12.2 The Entrepreneur shall within 60 (sixty) days of date of termination of this Agreement for any reason, sell any number of Assets proportionate to the number of Assets invested in by TPF in an effort to restore its clients to the position they would have been in had they not invested in the Assets. The Entrepreneur shall make its best efforts to obtain the best price for the Assets on behalf of TPF, but will not be liable for any losses that TPF may suffer as a result of the premature termination of this Agreement and sale of the Assets.
12.3 It is an express condition of this Agreement that where notice of termination has been properly served, the Entrepreneur will not be liable for any cost of whatsoever nature incurred by the Investor after the termination date.
12.4 The Entrepreneur shall pay to TPF any sum of money that may be due and payable for all fees, expenditure and liabilities properly incurred by TPF up to the date of termination and the Entrepreneur shall not be entitled to any payment of whatsoever nature other than proceeds in the sale of any Assets (if any) less the costs incurred during the investment period.
- The provisions of this clause will continue to remain of force and effect notwithstanding the termination of this Agreement.
- FORCE MAJEURE
13.1 Force Majeure shall mean any circumstances beyond the reasonable control of the party concerned and shall include but not be limited to:
13.1.1 war, revolution, riot, mob violence, sabotage, epidemics, accidents, breakdown of technology or facilities where such are not part of the the Entrepreneur’s assets or under the Entrepreneur’s control.
13.1.2 industrial action by workers or personnel.
13.1.3 earthquake, flood, fire or other natural physical disaster.
13.2 The mere shortage of labour, materials or utilities shall not constitute a Force Majeure unless caused by circumstances which are in itself a Force Majeure.
13.3 If either party is prevented from performing any of its obligations under this Agreement by Force Majeure, then it shall immediately notify the other party of the circumstances causing Force Majeure and the obligations so affected. The party giving such notification shall thereupon be excused from the performance for so long as the circumstances of prevention may continue.
13.4 If by virtue of the provisions hereof either party shall be excused from performance for a continuous period of 30 Days, then either Party may, at any time thereafter and provided such performance is still excused, summarily terminate the Agreement by notice in writing one to the other.
14.1 Any communication or notice required to be given or made under this Agreement between the parties shall be in writing and shall be deemed:
14.1.1 To have been duly made or given if either sent by prepaid registered post or telegram or hand delivered to the domicilium citandi et executandi of the parties by telex, e-mail or facsimile to the appropriate numbers of the parties or such other address as notified in terms hereof;
14.1.2 To have been received by the intended addressee for all purposes thereunder:
14.1.3 If delivered by hand or transmitted by facsimile, telex, e-mail or telegram, on the day of normal business following the date of despatch of such communication or notice; and
14.1.4 If made by prepaid registered post, on the tenth day following the date of despatch of such communication or notice unless such tenth day is not a normal business day, then on the next normal business day immediately thereafter.
Each party chooses as its domicilium citandi et executandi and for the purposes of delivering notices and process its address set out in clause 2 which it may vary by notice to the other in writing from time to time.
- TAXES AND DUTIES
Neither Party shall be responsible for any income tax nor any other taxes or duties levied on the other and/or their personnel and/or agents in respect of the other’s obligations in terms of this Agreement.
- ALTERNATIVE DISPUTE RESOLUTION (“ADR”)
17.1 Should any disputes or differences whatsoever arise at any time between the TPF and the Entrepreneur or concerning this Agreement or its construction, interpretation or effect or as to the rights, duties or liabilities of the Parties under or by virtue of this Agreement or otherwise or as to any other matter in any way arising out of the subject matter of this Agreement, and should the parties fail to resolve such dispute amicably then either party may declare a dispute by giving to the other party notice thereof in writing, specifying the nature of the dispute, its details, and the point at issue.
17.2 The aggrieved party may elect to resolve the dispute by way of litigation. Should the aggrieved party fail to so elect, then the dispute shall be resolved in accordance with the rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
17.3 Any award made by the arbitrator or arbitrators shall be subject to appeal in terms of the rules of the Arbitration Foundation of Southern Africa.
- GOVERNING LAW AND JURISDICTION
This Agreement shall be governed, construed and interpreted in accordance with the law of the Republic of South Africa and the parties hereby consent to the non-exclusive jurisdiction of any competent court.
- COSTS OF AGREEMENT.
Each Party shall bear its own costs relating to this Agreement.
If, for any reason whatsoever, any part or one or more of the provisions of this Agreement shall be held or deemed to be inoperative, unenforceable or invalid as applied to any particular case or in all cases, such circumstances shall not render any of the other provisions of this Agreement inoperative, unenforceable or invalid.
- AMENDMENTS TO AGREEMENT
Any amendments made to this Agreement shall be of no force or effect unless reduced to writing and signed by both Parties hereto.
- CESSION AND ASSIGNMENT
Neither Party shall cede, assign or transfer any rights, benefits or obligations of this Agreement to any other person except with the written approval of the other.
- NO WAIVER
No act of relaxation, indulgence or grace on the part of either Party shall in any way operate as or be deemed to be a waiver by that Party of any of its rights in terms of the Contract or a novation thereof.
- ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties hereto. Any variation of this Agreement and of this clause shall be in writing and signed by the Parties hereto.