What is the purpose of these Investor Terms & Conditions?
If you are an investor or potential investor in a company seeking investment (we call them, an issuer), these Investor Terms & Conditions (Investor T&Cs) tell you the important terms & conditions that apply when you:
- use our crowd sourced funding (CSF) platform (CSF Platform)
- participate in an issuer’s expression of interest campaign (EOI)
- participate in an issuer’s CSF investment offer (CSF Offer)
Please read through it carefully because by accessing our websites and using our services (including when you participate in an EOI or CSF Offer), you expressly agree to, and are bound by, these Investor T&Cs. If that’s not ok with you, no hard feelings but we request you close this website and stop using our services now.
Other important terms & conditions that apply
You should also read:
if you are an investor or potential investor:
if you are a company seeking investment:
any other terms & conditions we provide to you when you access our services
Each of those terms are important and also apply to you when you use our websites and services.
Who are ‘we’?
Birchal is an equity crowdfunding platform connecting businesses with investors (and vice versa). We believe everyone should have the opportunity to invest in the brands they love. If you want to find out more about what we do, www.birchal.com is a great place to start.
To simplify matters, when we refer to ‘we’ or ‘our’ or ‘us’ or ‘Birchal’ in these Investor T&Cs that means Birchal Pty. Ltd. ACN 616 478 767 and its related bodies corporate (other than as set out below).
It is important to note that our crowdfunding services are provided solely by Birchal Financial Services Pty Ltd ABN 39 621 812 646 AFSL 502618 (BFS). BFS is a wholly-owned subsidiary of Birchal Pty. Ltd. ACN 616 478 767. Please review our Financial Services Guide for more information. Crowdfunding services are marked on the CSF Platform with a "CSF" badge.
Who is the ‘issuer ’ or the ‘company’?
In these Investor T&Cs, we often refer to the “issuer”. This is the company seeking to raise funds by issuing shares to investors via the CSF Platform. You may decide to participate in the issuer’s EOI or CSF Offer.
Your agreements & acknowledgements
You acknowledge and agree to us each of the following:
- Prior to participating in any EOI or CSF Offer, you will read:
- the general CSF risk warning available at www.birchal.com
- the company’s offer document related to the CSF Offer (CSF Offer Document), when it is available.
- If you are an individual, you are over 18 years old.
- You will provide us with any information we request that may be necessary for us to provide our services to you, and for you to use the CSF Platform, including:
- if you are an individual, your full legal name, residential address, email address and bank account details
- if you are a company, your company number or business number, your registered office, address for service, email address and bank account details and the directors and ultimate beneficial owners of the company
- if you are a trustee of a trust, the full legal name, residential address and email address of each trustee of that trust and the bank account details of the trust, the name of the trust and the ultimate beneficial owners of the trust.
- All information you disclose to us and on the CSF Platform (including via the application facility and the communication facility) is:
- provided in good faith and is true, accurate and not misleading
- does not infringe on any laws, regulations or the rights of any third party, including intellectual property rights.
- Your use of the communication facility on the CSF Platform for a CSF Offer is solely for the purpose of seeing and making posts relating to the CSF Offer, asking questions of the issuer or of BFS related to the relevant CSF Offer. You must comply with the Communication Facility Protocol. Any abusive, misleading or irrelevant comments or questions may be removed, and your use of the communication facility may be restricted by BFS (acting in its absolute discretion).
- Retail investors: If you are a “retail client” for the purposes of section 738D of the Corporations Act 2001 (Cth)(Corporations Act) in relation to a CSF Offer, you agree that:
- the total sum of your investments will not exceed $10,000 through CSF offers by the same issuer in any 12-month period (either via our CSF platform or the platform of another CSF intermediary)
- you will provide an acknowledgement that you have read and understood the risk warning statement before applying for shares under the CSF Offer and (as required under the Corporations Regulations 2001 (Cth)) - you will have an opportunity to review the risk warning statement and provide the acknowledgement on the CSF Platform before you apply for shares in an issuer
- we will reject your application if you do not meet either of the above conditions.
- Wholesale investors: If you do not meet the definition of a “retail client” under Chapter 7 of the Corporations Act (described above) you agree to provide us with:
- an accountant’s certificate and declaration (dated no more than 6 months prior to the date of your application for shares) enabling us to treat you as a “wholesale client” as defined under Chapter 7 of the Corporations Act
- any other information we may require to satisfy ourselves that you are not a “retail client”.
- Overseas (i.e. non-Australian) investors:
- An EOI and CSF Offer is not an offer to the public in the United States, Canada, Japan or any other jurisdiction outside of Australia where such an offer would be unlawful or require the issuer, Birchal or BFS to be registered or take any step under the securities laws or other applicable laws of such jurisdiction or the foreign investment laws or other applicable laws of Australia.
- If you participate in an EOI or apply for shares under a CSF Offer from outside of Australia, are not a citizen or resident of Australia or a company incorporated in Australia (as applicable) (each an, overseas investor), you are solely responsible for ensuring that it is lawful for you to participate in an EOI, access and receive a CSF Offer and to make an investment in a company on the CSF Platform.
- An issuer or BFS may (in its sole discretion) refuse, reject, restrict or place conditions on any overseas investor wishing to apply for shares under an issuer’s CSF Offer.
- If you are, or become, an overseas investor, you indemnify us and our employees, officers, agents and contractors from and against (without limitation) any losses, expenses, claims or costs (including out of pocket expenses, reasonable legal expenses and the cost of our time) incurred as a result of your failure to comply with these Investor T&Cs.
- Applying for shares:
- The CSF Platform does not accept joint applications.
- An application for shares under a CSF Offer is subject to the relevant subscription agreement between you and the issuer making the CSF Offer - you will have an opportunity to review the subscription agreement on the CSF Platform before you apply for shares in a company. We are not parties to the subscription agreement and are not liable to you or the company for any claim in connection with a party failing to perform its obligations under the subscription agreement.
- You may only apply for shares under a CSF Offer for yourself in your own name and you must ensure that all investments made through the CSF Platform are made on your own behalf.
- If you apply for shares under a CSF Offer via a company, you must be a director of the company, duly authorised to make the application on behalf of the company and bind the company to the terms of the CSF Offer.
- If you apply for shares under a CSF Offer via a trust, you must be the trustee of the trust, duly authorised under the terms of the trust to make the application and bind the trust to the terms of the CSF Offer.
- Your information: You acknowledge there will be times when we need to share your information (including your personal information) with third parties in connection with us providing our services to you and to issuers. For example, we may disclose your information to:
- other companies in the Birchal group of companies and our employees and shareholders
- our clients in connection with providing our services to that client (e.g., if you participate in an EOI or CSF Offer, we will provide your details to that company)
- our and our client’s third party service providers and partners in connection with providing our services (e.g., if you make an investment in a company, we may provide your information to our payment processor, our KYC verification provider or to the company’s share registry to manage your investment)
- regulators, law enforcement bodies, government agencies, courts or other third parties where we think it’s necessary to comply with applicable laws or regulations, or to exercise, establish or defend our legal rights
For information about how we hold and share your personal information, please check out our Privacy Policy.
- The fact that an issuer is permitted to use our services, including the CSF Platform in order to seek investment, does not provide any guidance by us as to the performance of the issuer or the results of any investment in that issuer. You should not rely on that fact when making any decision to invest or taking any other action.
- We do not verify the content of any CSF Offer Document or associated marketing and advertisements and make no warranties, representations or guarantees (whether express or implied) relating to the accuracy, completeness or reliability of the content of any CSF Offer Document.
- You are solely responsible for any decision you make to invest, or to not invest, in any issuer. You expressly acknowledge that you make any decision independently after having made all such investigations and taken all such professional advice or other steps as may be necessary to enable you to make an informed and independent decision.
- To the maximum extent permitted by law:
- our entire liability to you (that’s BFS and Birchal, individually and together) arising directly or indirectly (whether in contract or tort, including negligence, statute or otherwise) in connection with an EOI, CSF Offer or the CSF Platform is limited to the amount of fees actually received by BFS in relation to your investment in the relevant EOI or CSF Offer giving rise to the claim, as applicable.
- we will not be liable for any special, indirect or consequential loss or damage, including (without limitation) loss of income, revenue, profit, opportunity, contract, business, anticipated savings, data, reputation, goodwill or management or office time.
The Investment Process
Set about below is more information about the investment process and the terms and conditions that apply to you each time you use the CSF Platform, participate in an EOI or participate in a CSF Offer. Please read them carefully and make sure you understand them before proceeding or taking any action.
Fees
There are no fees payable by you (as an investor or potential investor) to sign up for an account on the CSF Platform (we call this your Birchal account), to use the CSF Platform, to participate in an EOI or to apply for shares under a CSF Offer.
EOI
When you participate in an EOI, you are demonstrating your interest in an issuer’s CSF Offer, including receiving further information about the CSF Offer from the issuer and us.
By participating in an EOI, you are not creating a binding legal relationship between yourself and the issuer. The issuer may close the EOI at any time and there is no guarantee an issuer will proceed from an EOI to a CSF Offer.
CSF Offer
Gatekeeper checks
Before we permit an issuer to make a CSF Offer and raise funds on the CSF Platform, we will undertake certain checks on the issuer and its directors and senior managers in accordance with our obligations as a CSF Platform intermediary under the Corporations Act.
If we consider, in our absolute discretion, that our checks have disclosed any fact or circumstance that we consider raises an area of concern about the issuer or its directors or senior managers or that an issuer is otherwise not suitable for raising funds through the CSF Platform (for any reason in our sole discretion), we reserve the right at any time (including after a CSF Offer has opened on the CSF Platform) to refuse to permit the issuer to make a CSF Offer or to use our services, including the CSF Platform to raise funds, or to withdraw any CSF Offer at any time.
CSF Offer Document
In connection with an issuer’s CSF Offer, it will publish a CSF Offer document on the CSF Platform. The CSF Offer Document outlines key information about the issuer and its offer to sell shares - ASIC also prescribes minimum required information that must be included in an issuer’s CSF Offer Document.
You must read the CSF Offer Document before you participate in the CSF Offer and make an application to invest for shares.
Offer Period
The offer period for each CSF Offer (i.e. how long the CSF Offer is open for) starts on the date the CSF Offer is first opened by us on the CSF Platform and ends on the date the first of the following events occurs:
- the closing date specified in the CSF Offer
- three months from the date the CSF Offer starts
- the date and time the issuer withdraws the CSF Offer - the issuer may withdraw the CSF Offer by notifying us at any time, if required by us or as a result of a material adverse change affecting the CSF Offer
- the date and time we consider that the issuer has met its maximum level of investment as set out in the CSF Offer Document
- the date and time the continued publication of the CSF Offer Document on the CSF Platform is prohibited by section 738Q of the Corporations Act.
The offer period does not include any part of that period while the CSF Offer is suspended under s738X of the Corporations Act.
Application for shares
You may apply to subscribe for shares in an issuer under a CSF Offer via the application facility on the CSF Platform, including nominating your investment amount (we call this an application for shares or application).
An application for shares may be accepted or rejected (in full or in part) by the issuer or BFS in their absolute discretion. For example, we may reject an application for shares if it is incomplete, received outside of the offer period, violates any of our terms and conditions or for any other reason.
Accepting applications
We generally accept and approve applications in the order they are received by us from investors via the CSF Platform.
In circumstances where a CSF Offer has exceeded its maximum target, we may continue to accept applications until we can form the view that the CSF Offer is fully subscribed. In such circumstances, we will endeavour to meet all application requests in the order they have been received, and may scale back applications at our discretion. We may also choose to depart from this practice in our absolute discretion.
Subscription agreement
Your application for shares under a CSF Offer must be accompanied by a subscription agreement to be entered into between the issuer and you (subscription agreement). The subscription agreement will be available for you to review on the CSF Platform before you apply for shares.
The subscription agreement will set out the terms and conditions of your investment, including:
- the company’s obligation to issue shares to you
- your obligation to pay the relevant subscription price for the shares you applied for (i.e. your investment amount) (subscription amount)
- Important representations and warranties you and the issuer make to each other about your ability to lawfully enter into the subscription agreement.
By applying for shares under a CSF Offer, you enter into the subscription agreement and agree to, and are bound by, its terms.
If your Birchal account is terminated or suspended after you have made an application under a CSF Offer, you will continue to be bound by the subscription agreement.
Paying the subscription amount
When you accept a CSF Offer, you must pay the subscription amount to BFS in accordance with the payment processing terms below. Upon receipt of the subscription amount, BFS will hold the subscription amount in our trust account held with an authorised deposit-taking institution in Australia (bank) on trust for your benefit until the subscription amount is paid in accordance with the requirements set out in Part 6D.3A of the Corporations Act.
You acknowledge that you must pay the subscription amount in full in Australian dollars and you are solely responsible for any additional fees or charges payable by you, including bank transfer fees or foreign exchange fees.
You acknowledge that the bank is entitled to rely and act on any instruction from us relating to any amounts held in our trust account (including any subscription amount) without any further enquiry or liability. You waive any liability the bank may have to you arising out of a breach of trust by us (or any of our employees, agents or representatives).
You irrevocably authorise us to:
- hold the subscription amount in our trust account
- pay the total subscription amount to the issuer (without interest and less any fees owed by the issuer to us) on successful completion of the issuer’s CSF Offer (i.e. once the issuer meets its funding target) (Funded).
For the avoidance of doubt, this irrevocable authority survives termination, suspension or deletion of your Birchal account.
We will hold the subscription amount in our trust account separately from any of our operating accounts and will only use those funds to:
- pay the subscription amount on your behalf to the issuer (without interest, and less any fees owing by the Issuer to us) once Funded; or
- return the subscription amount to you (without interest) if the CSF Offer is not Funded or if you exercise your cooling off rights.
Payment of the subscription amount in accordance with the subscription agreement and these Investor T&Cs will be a full discharge of your obligation to the issuer to pay that amount.
We endeavour to transfer all subscription amounts to the issuer within a reasonable period of time after the end of the offer period and expiry of all cooling off rights (usually 14 days).
Payment Processing Terms
We use third-party service provider, Zai Australia Pty. Ltd (formerly known as Assembly Payments Platform Pty Ltd) (ABN 96 637 632 645) (Zai), for our payment processing services. If you make a payment, the remitter name may appear as ‘Zai’, ‘Cuscal’ and/or ‘Birchal’ on your bank statement.
By participating in a CSF Offer (or otherwise buying or selling anything on the CSF Platform) you are engaging Zai as your agent to facilitate your payment and you:
In no event will Zai be liable to any person using its payment processing services for any actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise (collectively, Losses), of any kind whatsoever, arising out or relating to their respective use of, or inability to use, the payment processing services, regardless of the legal theory under which such Losses are sought. In the event the foregoing is not enforceable for any reason, then Zai’s maximum aggregate liability arising from or relating to any claim (or series of related claims), by any platform buyer, platform seller, or subscriber arising from or relating to the payment processing services shall not exceed the aggregate purchase price paid or payable for the goods, assets or services which are the subject of the transaction(s) giving rise to the payment claim.
Your cooling off rights
If you are an Australian retail client, you have an unconditional right to withdraw an application for shares made under a CSF Offer within 5 business days of making the application.
Information about how to exercise your cooling off right is available on the CSF Offer page for the relevant CSF Offer (accessible via your Birchal account). If you decide to exercise your cooling off right, we will return the relevant subscription amount to you as soon as practicable.
Communication facility
The CSF Platform includes a communication facility in relation to each CSF Offer, which enables you to submit questions to the issuer and to us in connection with the CSF Offer.
You are responsible for any content you post on the CSF Platform.
You may only use the communication facility in relation to any CSF Offer for lawful and legitimate purposes, and you must not post, transmit or share information on the CSF Platform that is unrelated to the CSF Offer, or that you do not own or have permission to display, publish or post, or any content or material that may be in violation of any law. All posts on the communication facility must be made in good faith.
We make no representations, warranties or guarantees and assume no liability in respect of the content of any of the issuer’s responses under the communication facility in relation to the CSF Offer.
Check out our Terms of Service for more information about your obligations in relation to your content and use of the CSF Platform.
Withdrawn CSF Offer
If an issuer does not meet its minimum target by the closing date specified in the CSF Offer, or the CSF Offer is withdrawn or terminated before the closing date specified in the CSF Offer:
- the issuer will not be Funded
- completion of the subscription and issue of shares will not occur
- the subscription agreement entered into between the issuer and you will be automatically terminated and be of no force or effect
- we will endeavour to return the relevant subscription amount to you within 14 business days of us notifying you that the CSF Offer was not successful.
No transfer of CSF Offer shares
If you wish to transfer shares you hold in a company to another person, you should contact the relevant company.
We do not facilitate the trading or transfer of shares issued via the CSF Platform. We provide no advice on whether shares issued under a CSF Offer may be legally transferred.
We are not liable to you or the issuer in connection with any transfer of shares that were originally issued under a CSF Offer (whether or not issued via the CSF Platform), including the consequences of any breach of financial services laws, any notification requirement to ASIC or in connection with closing or suspending a CSF Offer. You and the issuer indemnify us against all losses, costs and liabilities we suffer or incur in connection with a transfer of shares originally issued under a CSF Offer.
You should seek independent legal or professional advice in relation to any transfer of shares that were originally issued under a CSF Offer.
Birchal and our associated persons
You acknowledge that we, or any person associated with us (including our directors, employees or any other person we have a material business relationship with) (each, an associated person) may invest in any issuer or raise funds via the CSF Platform.
If we or an associated person invests in an issuer, or raises funds via the CSF Platform, and you become aware of this, you may not rely on this fact when making a decision whether or not to invest. You confirm that any decision made by you to invest in an issuer is not based on any representation, information, action, omission or otherwise of BFS or its associated persons.
If we, or any associated person, raises funds via the CSF Platform, we will comply with the following process (subject to any applicable laws):
- we will appoint an independent third party, who is acceptable to the relevant regulatory body, to review the information provided as part of the CSF Offer and to monitor the CSF Offer investment process to ensure that it is carried out in the same manner as other CSF Offers via the CSF Platform
- we will disclose the fact that the CSF Offer is of shares in us or an associated person will be specified on the relevant CSF Offer page.
Our liability to you
Each of the provisions under the heading “Our liability to you” in our Terms of Service also apply to these Investor T&Cs (as if they were set out in full here).
Your indemnity to us
You indemnify us and our employees, officers, agents and contractors from and against (without limitation) any liability, claim, loss or damage (including reasonable legal costs, out of pocket expenses and charges for our time) suffered or incurred by us as a result of your failure to comply with these Investor T&Cs or any of your obligations in relation to a CSF Offer.
How to contact us
You can ask us any questions about these Investor T&Cs by contacting us or sending an email to support@birchal.com. Sending an email will ensure your question gets to the right person quickly.
Complaints & dispute resolution
If you have a complaint about our services, you can contact us (using any of the details above) and discuss your complaint. We will try and resolve your complaint quickly, fairly and within prescribed timeframes.
Our full complaints policy is available on the Website at https://www.birchal.com/complaints-policy
Birchal’s complaints policy explains how you can make a complaint, our measures for handling your complaint, and the steps you can take if you are not satisfied with our response to your complaint or the time that it takes for us to respond.
If the complaint cannot be resolved to your satisfaction, you have the right to refer the matter to the Australian Financial Complaints Authority (AFCA). AFCA provides fair and independent financial services complaint resolution that is free to consumers.
- Website: www.afca.org.au
- Email: info@afca.org.au
- Telephone: 1800 931 678 (free call)
- In writing to: Australian Financial Complaints Authority, GPO Box 3, Melbourne VIC 3001
Changes to the Investor T&Cs
We may update or amend our Investor T&Cs from time to time to reflect changes to law or our business practices. The updated Investor T&Cs will be published on this website and will apply to all of our services from that time onwards.
Where a change is significant we’ll send you an email and let you know. If you do not accept such amendment, you must cease using the CSF Platform and our services.
General
Each of the provisions under the heading “General” in our Terms of Service also apply to these Investor T&Cs (as if they were set out in full here).
Electronic execution
These Investor T&Cs are legally binding. You agree for the purposes of the Electronic Transactions Act 1999 (Cth) to be bound by any agreement reached through electronic means.
BY USING THE CSF PLATFORM, PARTICIPATING IN AN EOI OR PARTICIPATING IN A CSF OFFER, YOU CONFIRM YOUR ACCEPTANCE OF THESE INVESTOR T&CS.
If you do not understand any of the terms set out in these Investor T&Cs or have any questions in relation to it, please obtain independent legal or professional advice before proceeding.
