TERMS AND CONDITIONS

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1. DEFINITIONS

1. 1 For the purpose of these T&Cs, the terms defined in this Clause, and elsewhere in these T&Cs, will have the following meanings:

• 1.1.1 Business Days means a day (other than a Saturday, Sunday, or gazetted public holiday in Kuala Lumpur) when commercial banks are open for business in Kuala Lumpur, Malaysia;

• 1.1.2 CCRIS means the Central Credit Reference Information System maintained by Bank Negara Malaysia;

• 1.1.3 CMSA means the Capital Markets and Services Act 2007 (or that Act as amended from time to time);

• 1.1.4 Facility means a sum of money that has been advanced by Investor/s to an Issuer through the use of the Funding Societies platform and includes funding raised from issuance by an Issuer of Investment Notes;

• 1.1.5 Funding Societies Trust Account means an account in which an Investor will be required to place the principal amount;

• 1.1.6 Investment Note means any contract or document evidencing a monetary loan offered on or through an electronic platform, where an investor expects a financial return, but does not include:
  (a) Any right, option or interest in respect thereof;
  (b) A cheque, banker's draft or any other bill of exchange or a letter of credit;
  (c) A banknote, guarantee or an insurance policy; or
  (d) A statement, passbook or other document showing any balance in a current, deposit or savings account;

• 1.1.7 Investor means a corporate, institution or individual that will fund the facility to an Issuer;

• 1.1.8 Issuer means a Malaysian registered sole proprietorship, Malaysian registered partnership, Malaysian incorporated limited liability partnership, Malaysian private limited or unlisted public company that is seeking a facility via Funding Societies’ platform;

• 1.1.9 Law means all applicable laws, rules, regulations, constitution, rulings, interpretations, customs, usages, protocols of governmental bodies and self-regulatory organisations of Malaysia

• 1.1.10 Officer , in relation to Funding Societies means any director, officer, or employee of Funding Societies; and

• 1.1.11 T&C means these Terms and Conditions, as may be revised, amended or supplemented from time to time in the sole and absolute discretion of Funding Societies, which expression shall where the context so admits, include any one of them

2. GENERAL

2.1 If there is any inconsistency between the provisions of these T&Cs and any agreement entered into by Funding Societies, the agreement shall prevail.

2.2 In these T&Cs, any reference to any legal entity or individual person includes, where appropriate, a reference to its authorised agents, delegates, successors or nominees. Expressions in the singular form include the plural and vice versa.

2.3 No rule of law (or interpretation to the effect) that an ambiguity in a document is to be construed against the party drafting or preparing such document shall apply in respect of these T&Cs.

2.4 Any reference to any law, statute or regulation or enactment shall include references to any statutory modification or re-enactment thereof, or to any regulation or order made under such law, statute or enactment (or under such a modification or re-enactment)

2.5 The headings used in these T&Cs are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in, interpreting these T&Cs.

3. SERVICES PROVIDED

3.1 These T&Cs set out the T&Cs under which Modalku Ventures Sdn Bhd (Registration No. 201601019329 (1190266-X)) (“Funding Societies”) will provide the services (“Services”) to you on www.fundingsocieties.com.my (the “Website”). You agree that Funding Societies shall have sole and absolute discretion to determine whether the Services are to be provided or otherwise be suspended or ceased by Funding Societies, and Funding Societies may refuse to provide any Services without giving any reason or incurring any liability to you as a result.

3.2 Funding Societies’ provision of Services shall be subject at all times to the Law and these T&Cs, and Funding Societies will not be liable as a result of any actions taken by any party to comply with the Law and these T&Cs.

3.3 Unless otherwise specified, the Services provided by Funding Societies may involve arranging for a Loan, or such other services as Funding Societies may introduce from time to time.

4. ACKNOWLEDGEMENT

4.1 You understand, acknowledge and agree that Funding Societies does not and will not:

• 4.1.1 take a deposit

• 4.1.2 take capital risk

• 4.1.3 take a side in a lending agreement

• 4.1.4 engage in activities regulated under the CMSA (except as a Recognized Market Operator for P2P Financing);

• 4.1.5 provide credit rating services, or

• 4.1.6 provide custodial services

4.2 You understand, acknowledge and agree that Funding Societies’ role is merely administrative and mechanical in nature in arranging for the Issuer to enter into a Facility with Investors and as such Funding Societies is not regulated by laws regulating the business of and does not carry out any activities within the ambit of or relating to money lending, financing business and the taking of deposits in the course of carrying on a deposit-taking business.

4.3 You understand, acknowledge and agree that Funding Societies does not and will not assume any advisory, fiduciary or similar other duties or act as an investment adviser to you. You understand, acknowledge and agree that you have taken, or will take, the necessary independent legal, tax, financial or other advice before Funding Societies provides Services to you

5. PERSONAL AND DATA PROTECTION

5.1 You hereby agree that Funding Societies may collect, store, process, disclose, access, review and/or use personal data (including sensitive personal data) about you, whether obtained from you or from other sources in accordance with the Personal Data Protection Act 2010. You further acknowledge and agree to the Privacy Notice as published on Funding Societies’ website which may be amended by Funding Societies from time to time without having to notify nor secure any approval from you and that such amendment shall be effective upon posting on the Funding Societies’ website.

6. DUE DILIGENCE OF A POTENTIAL ISSUER

6.1 Upon receipt of an application for Services, Funding Societies’ credit underwriters will conduct due diligence on the Issuer. During this process, Funding Societies may contact any relevant authorities, private companies, or individuals to ascertain, verify and confirm relevant information about the Issuer, including (but not limited to) its legal or credit history (including credit rating agency and CCRIS checks). The Issuer and each of its related parties (inclusive but not limited to its directors, partners, shareholders, employees, representatives, agents, beneficial owners, guarantors and authorised signatories of the Issuer) also hereby provide their respective consent for credit reporting agencies to obtain and process their respective credit information for Funding Societies as per the Credit Reporting Agencies Act 2010 (as may be amended from time to time).

6.2 Unless Funding Societies is required by Law, or has received prior written permission from the Issuer, Funding Societies will not reveal or disclose documents provided by the Issuer to any third party.

6.3 Upon Funding Societies’ satisfaction of the due diligence results, Funding Societies will inform the Issuer of the proposed terms and conditions of the Services via e-mail.

7. THE ISSUER’S FACILITY APPLICATION

7.1 On the basis that the Issuer:

• 7.1.1 hereby agrees to comply with, and accepts, the terms and conditions of the Services and these T&Cs; and

• 7.1.2 hereby confirms that it has not applied to any other peer-to-peer platform for funding for similar purposes,

the Issuer may submit a request for facility application, which will indicate the Required Sum (the “Facility Request”). For the avoidance of doubt, the submission of a Facility Request is deemed to be affirmative consent by the Issuer to the provisions set out in sub-Clauses (a) and (b) above.

7.2 The Facility Request does not constitute an agreement by anyone to extend funding to the Issuer. It is only a request for a commit of funds to a Facility. For the avoidance of doubt, the Facility Request is not an offer; it constitutes an invitation to treat and therefore none of the parties shall be deemed, by any means whatsoever, to be bound to any commitment, agreement or arrangement whatsoever without their express consent.

7.3 The maximum facility amount that can be granted to the Issuer is the amount in the Facility Request and the minimum Facility amount that can be granted shall be eighty percent (80%) of the amount in the Facility Request.

7.4 Upon the Issuer’s submission of the Facility Request, and subject to approval of the same, the Issuer agrees to enter into relevant agreements and any related documents for the Facility, if any, within the timeframe stipulated by Funding Societies. The Issuer agrees that failure to enter into the relevant agreement or any related documents on its part within such timeframe or at all obligates the Issuer to pay to Funding Societies, a sum amounting to such proportion of the facility amount as Funding Societies may determine in its absolute discretion, as is required to indemnify Funding Societies for all costs, expenses and fees paid and expended by Funding Societies in, inter alia, processing the Issuer's Facility Request, conducting credit checks, and making other arrangements.

8. ISSUER PAYMENTS

8.1 Repayment of the Facility, with interest, shall be payable on a periodic basis upon terms to be agreed between the Investors and the Issuer in the facility documentation.

8.2 The Issuer is aware of, and agrees to pay all of, the relevant arrangement, miscellaneous fees to Funding Societies and/or any other relevant parties for arranging and papering of the facility and the relevant agreement. In addition, the Issuer agrees to pay for all penalty fees, handling fees for late payments, collection fees and any other fees due to Funding Societies as a result of activities Funding Societies undertakes as part of the Services from time to time.

9. UPDATING DATA

9.1 Funding Societies may from time to time modify the Issuer’s data (“Modifications”) stored in the Websites database. This may include, but is not limited to, updating the Issuer’s information, and uploading any additional documents pertaining to the Issuer’s data. The Issuer will be given fourteen (14) calendar days’ notice (the “Notice Period”) to approve or reject the Modifications. The Issuer shall be deemed to irrevocably and unconditionally consent to the Modifications if no response is given to Funding Societies within the Notice Period.

10. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS

10.1 The Issuer irrevocably and unconditionally represents and warrants to Funding Societies that:

• 10.1.1 it is [a Malaysian registered sole proprietorship]/[Malaysian registered partnership]/[limited liability partnership]/[private limited company]/[unlisted public company] incorporated under Malaysian laws;

• 10.1.2 it is solvent, and there are no reasonable grounds to suspect that it is unable to pay its debts as and when they become due and payable;

• 10.1.3 it has full power and the legal capacity to enter into and be bound by, perform and deliver these T&Cs and to perform its obligations under these T&Cs and the relevant agreements. Furthermore, the Issuer has taken all necessary actions to authorise its entry into, performance and delivery of any obligations created under these T&Cs and the relevant agreements;

• 10.1.4 the obligations assumed by the Issuer in these T&Cs and the relevant agreements constitute the legal, valid, binding, and enforceable obligations of the Issuer;

• 10.1.5 all information provided by the Issuer to Funding Societies does not contain any false or misleading statements, nor any material omission, and is true and accurate in all material respects on and as at the date it was provided;

• 10.1.6 it has, and will maintain in force all required licenses, authorizations or approvals necessary to perform its obligations under these T&Cs and the relevant agreements; and

• 10.1.7 there is no action, suit, or proceeding at law, equity, or before any court, tribunal, governmental body, agency or official or any arbitrator (whether pending or threatened) or non-compliance with or violation of the Law or infringement of any rights of any third party committed by or which involves the Issuer that is likely to affect the legality, validity or enforcexability of these T&Cs or the relevant agreements, or affect the Issuer’s ability to perform its obligations hereunder.

10.2 The Issuer undertakes that it shall at all times and by any means:

• 10.2.1 comply with the Law, direction, orders and decrees of any governmental authorities applicable to the performance of their obligations under these T&Cs and the relevant agreements.

• 10.2.2 not undertake any activity which is illegal under the Law to which it is subject or the Law relating to its business practices of the places of incorporation, or any other country in which it is operating or will run its business.

• 10.2.3 procure that its directors, commissioners, proxies, representatives, officers and employees (“Associated Persons”) shall adhere to, and comply with, the terms and conditions of these T&Cs and the relevant agreements as if said Associated Persons were a party to them.

11. AUTHORISATION

11.1 The Issuer unconditionally and irrevocably authorises Funding Societies and its appointed proxies or representatives to:

• 11.1.1 conduct credit checks on the Issuer;

• 11.1.2 obtain and verify any information about the Issuer as Funding Societies may, in its sole and absolute discretion, deem fit;

• 11.1.3 use all relevant sources, which Funding Societies may apply to, to provide any information which Funding Societies may require in connection with the facility;

• 11.1.4 disclose any information and/or data relating to the Issuer and its account(s), and/or credit cards (if any), or any other information as Funding Societies may deem necessary to:

  (a) any Investor's head office, representative and branch offices and/or any related company or associated company of the Investor, in any jurisdiction;
  (b) the head office, representative and branch offices of Funding Societies, and/or that of its related companies or associated companies in any jurisdiction;
  (c) the Securities Commission, Bank Negara Malaysia and any other government or regulatory agency or authority;
  (d) any Investor’s potential assignees or transferees (subject to the prior consent of Funding Societies) or to any person who has or may enter into contractual relations with the Issuer in relation to the facility application;
  (e) any credit bureau, including members of such credit bureau;
  (f) any other third parties, service provider, agents or business partners (including, without limitation, credit reference or evaluation agencies) wherever situated for any purpose whatsoever; and
  (g) any other person to whom disclosure is permitted or required by the Law or ordered by any governmental institutions.

12. INDEMNITY

12. 1 The Issuer agrees to indemnify Funding Societies and its Officers against all losses, taxes, expenses, costs, legal fees, and liabilities (present, future, contingent or otherwise on any indemnity basis), which may be suffered or incurred by Funding Societies as a result of or in connection with:

• 12.1.1 the Issuer’s breach of the T&Cs or the relevant agreements;

• 12.1.2 the use of Funding Societies’ services or website and all contents therein by the Issuer;

• 12.1.3 any steps taken by Funding Societies in the event of a breach of these T&Cs or the relevant agreements;

• 12.1.4 any non-compliance with or violation of any prevailing laws and regulations, government’s policies, directives and court verdicts or arbitral awards of any judicial bodies including infringement of any third party’s rights committed by or which involves the Issuer and/or its affiliates, employees or related parties in or after the use of Funding Societies’ services or during the access to, use of or browsing in Funding Societies’ website.

12.2 The Issuer shall not, and it shall ensure at all times that Funding Societies will not be involved, by any means or under any circumstance whatsoever, in any proceeding, investigation, inspection, examination, audit, dispute or conflict and negotiation with any third party which arise from or in connection with the matters as referred to in Clause 12.1 above against which Funding Societies are to be indemnified unless it expressly choose or are willing to do so.

13. EXCLUSION AND LIMITATION OF LIABILITY

13.1 Neither Funding Societies nor any of its Officers shall be liable or involved in contract, tort (including negligence or breach of statutory duty) or otherwise, for (i) any loss of profit, business or revenue, (ii) any costs, damages, penalties, sanctions or expenses, or any special, indirect, reputational or consequential damages of any nature whatsoever, suffered or incurred by the Issuer as a result of or in connection with the provision of the Services.

14. TIME OF ESSENCE

14.1 It is a fundamental term of the relationship between the parties that the Issuer will perform its obligations on time.

15. NO WAIVER OF RIGHTS

15.1 A failure or delay in exercising any right, power or privilege in respect of these T&Cs will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise of that right, power or privilege or exercise of any other right, power or privilege.

16. AMENDMENTS

16.1 Funding Societies may at any time, give the Issuer notice of any amendment, variation, revision, supplement or any other change to these T&Cs by post, e-mail or such other means as Funding Societies shall deem fit. Changes shall take place on and from the date specified in the notice or if no such date is specified, on and from the date of such notice or otherwise as of the date on which the amendment is effected by way of posting it on Funding Societies’ website or platform, whichever is to be decided by Funding Societies in its sole discretion. Without prejudice to the foregoing, the entry into or continued entry into the Services after such change shall be deemed as the Issuer’s unconditional acceptance and agreement to the same.

17. GOVERNING LAW AND JURISDICTION

17.1 These T&Cs will be governed and construed in accordance with laws of Malaysia.

17.2 With respect to any suit, action or proceedings (each, a “Proceeding”) relating to any dispute arising out of or in connection with these T&Cs, each party submits to the non-exclusive jurisdiction of the courts of Malaysia.