Berkeley Rutherford Limited Website User and Investor Terms and Conditions
1. How the service works
1.1 Berkeley Rutherford Limited (firm reference number 798691), is an appointed representative of ShareIn Limited ("ShareIn") which is authorised and regulated by the Financial Conduct Authority under firm reference number 603332. References in these Terms and Conditions to “Berkeley Rutherford”, "we", "us" and "our" are to Berkeley Rutherford Limited.
1.2 The Berkeley Rutherford service is available to investors that become members through our website www.berkeleyrutherford.co.uk (the “Website”). We provide members with details of potential investments, such as bonds and preference shares issued by companies ("Issuers") we set up to make loans, as set out in the relevant Issuer’s Offer Document on our Website.
1.3 We offer investments in companies with whom we are associated, including Berkeley Rutherford group companies, as well as companies that are separately managed and owned. We refer to bonds issued by our associated companies as “Super Bonds”, because they will generally provide financing to a number of different businesses, which in turn helps diversify investor exposure to a single default. Investments we offer that are eligible for Business Property Relief are referred to as “ BPR Investments”. These are typically structured as preference shares issued by an Issuer that we manage. We refer to bonds issued by companies that we have vetted, but which we do not own or manage, as “Direct Bonds”.
1.5 Investments are only available to persons who fall within certain categories of investor who are eligible to acquire non-readily realisable securities. For individual investors, this entails making a declaration that the investor is a high net worth individual, is sophisticated in investing, has received advice from an authorised firm, or will observe limits in acquiring non-readily realisable investments. Non-advised investors must demonstrate their understanding of the features and risks of investing. Investors who satisfy these criteria, as set out in more detail on the Website, will be eligible to become “members”. Only members can receive investment offers through the Website.
1.6 If you are eligible for membership, you can invest online and receive online investment reports. Your investment subscriptions and any investment returns shall be held by MangoPay S.A. (“MangoPay”) in an electronic wallet pursuant to clause 4 and separate terms and conditions between you and MangoPay.
1.7 We will treat all members as retail clients for the purposes of the Financial Conduct Authority's rules (retail clients receive the highest degree of regulatory protections under those rules).
1.8 As a member of Berkeley Rutherford, you are bound by these Terms and Conditions in relation to your use of our Website and your participation in investment opportunities. Users of the Website who are not members are also bound by these terms insofar as they are capable of application to non-members. By using the Website, you confirm that you have read, understood and agree to these Terms and Conditions and our Privacy and Cookies Policy (see www.berkeleyrutherford.co.uk/legal/privacy ) each as amended from time to time. If you do not agree to the Terms and Conditions, you must stop using the Website immediately.
2. Accessing an investment account
2.1 We make details of investment opportunities available to all users of our Website, but only members are able to apply to invest or view investment offers in the Investments area when they have logged into their online account.
2.2 In order to become a member of Berkeley Rutherford, you will need to apply to join and be approved by us. We reserve the right to reject applications on such grounds as we see fit, including, without limitation, your knowledge and understanding of investing, your financial status, your capacity to be bound by these Terms and Conditions or the jurisdiction in which you live or are a citizen.
2.3 If you apply to become a member, we will carry out identity and fraud checks on you, using third party agencies. We use our own internal guidelines and policies when assessing applications but retain complete discretion. If we cannot get adequate information from the third party agency then we will ask you to send us copies of the relevant identification documents (normally a certified copy of your passport and a utility bill) and any supporting evidence that we may require. If you do not provide all appropriate identification documents you will not be able to invest. We may also suspend your membership at any time if we believe it is appropriate in order to comply with our legal obligations. For more details about how we use your information, please refer to our Privacy and Cookies Policy.
2.4 Provided that we accept your application to become a member, you will then be able to view the investment offers available through the Berkeley Rutherford Website.
2.5 Your application for membership should be completed in the name of the same person that will invest.
2.6 You will be required to provide personal details and a password to register as a member, which are unique to your individual Berkeley Rutherford membership and are not transferable. Your registration details and password are how we identify you and you must keep them secure at all times.
2.7 You are responsible for all information and activity on the Website by anyone using your details. If you authorise an agent, family member, employee or sub-contractor to use Berkeley Rutherford account you will be responsible for their activity on the Website. Any breach of security, loss, theft or unauthorised use of your security details must be notified to us immediately. We reserve the right not to act on your instructions where we suspect that the person logged into your Berkeley Rutherford account is not you or we suspect illegal or fraudulent activity or unauthorised use.
2.8 You agree not to adapt or circumvent the systems in place in connection with the Website, nor access our systems other than by using the credentials assigned to you and by following the instructions that we have provided for that type of connection.
3. Buying investments
3.1 If you wish to subscribe for an investment, you will need to specify the size of the investment you wish to make and place funds in your Berkeley Rutherford account.
3.2 Whether we choose to accept your application to invest will be at our absolute discretion, even if you are a member and satisfy our eligibility criteria, for example, but without limitation, because the offer is over-subscribed or under-subscribed or because of legal or regulatory matters. The allocation policy for each investment is based on a first-come-first-served basis, by reference to the time we receive your subscription payment. If it is not possible to allocate investments to you, we may hold your subscription for participation in a subsequent issue of like investments, although you will be entitled to request to have your unallocated subscription monies returned to you until they have been committed.
3.3 All bonds will be governed by the terms of the Bond Instrument; the Bond Certificate; the Offer Document; and these Terms and Conditions. All preference shares will be governed by the terms of the Issuer’s Articles of Association, your Investment Application, the Offer Document; and these Terms and Conditions. To the extent that there are any inconsistencies between these documents, the provisions of the Bond Certificate/Investment Application shall prevail over the Bond Instrument/Articles, which shall prevail over the Offer Document, which shall prevail over these Terms and Conditions.
3.4 We do not provide investment advice, legal advice or tax advice. In particular, we will not assess the suitability of an investment in light of your personal circumstances and you are responsible for making your own investment decisions. If you are in any doubt as to your own personal circumstances, you should seek such advice from an appropriately qualified professional.
3.5 We will not facilitate investment where we are aware that it is illegal, although it is your responsibility to ensure that you have complied with any relevant legal or regulatory restrictions that would prohibit you from investing.
3.6 After pledging, there may be a period of time during which the bond remains open and funds have not yet been transferred to the bond issuer. Therefore, interest will not be accrued during this time.
4. Your money and investments
4.1 If we accept your application to make an investment, we will provide you with bank account details into which you should transfer your subscription amount (your "Berkeley Rutherford account"). Payment must be made by electronic transfer from a bank account in your name whose details you provide to us and which we have accepted (your " Nominated Account"), into your Berkeley Rutherford account, where subscriptions will be held pending investment.
4.2 The Berkeley Rutherford account will be held by and administered by an independent regulated electronic payment provider (MangoPay), which will make payments to and receive them from Issuers on your behalf. MangoPay also opens electronic wallets in respect of each investor and Issuer for these purposes. MangoPay will pay any fees owing to Berkeley Rutherford and other services providers (if relevant) out of the relevant electronic wallet. You are required to enter into terms and conditions directly with MangoPay and Berkeley Rutherford shall not be responsible for the discharge of MangoPay’s obligations under those terms and conditions, beyond having taken reasonable steps to ascertain that it is appropriately authorised to provide the electronic money services. We or another person selected by us may take over control of the Berkeley Rutherford account at any time provided that we or they have appropriate regulatory permissions to hold client money and you authorise MangoPay to transfer any monies it holds for you in the Berkeley Rutherford account to us or to such other person in those circumstances without seeking your express instruction to do so.
4.3 Your investments will not generally have voting rights attached to them, but you will be entitled to vote on any amendments we may propose to the Bond Instrument or the Articles of Association of the Issuer.
4.4 You may request any your cash that has not been allocated to an investment, including investment returns, to be paid back into your Nominated Account. If you wish replace your Nominated Account, you may request to do so by email. Any alternative account must be in your name and be held with a bank or credit institution that is acceptable to us.
4.5 Payments to you will be made after deduction of any relevant tax. Regardless of whether we withhold tax, it is your responsibility to account for any taxes that may be payable to the appropriate authorities.
4.6 You can view details of the investments and money in your portfolio through the Website. For reporting purposes, we shall supply the par value and shall not attempt to provide current market valuations.
4.7 If you want us to hold money that has not been allocated in your Berkeley Rutherford account in order to invest in future opportunities, you may do so. No interest is payable on money held in the Berkeley Rutherford account and no fees are charged in respect of establishing the account. Berkeley Rutherford or ShareIn may retain a payment representing interest on the money held in the Berkeley Rutherford account.
4.8 The capital and interest repayments that are due to you will be received into your Berkeley Rutherford account and will not be paid out to you or re-invested unless you provide us with express instructions. If balances have sat on your account for a long period of time, we may contact you to seek your instructions. We may introduce the option to of auto-re-investment or auto-distribution in the future.
5. Selling investments
5.1 There is no established secondary market for investments available through the Website and so you should normally expect to hold your investments until the redemption date, or beyond, if there is a significant default on the underlying investments.
5.2 If you find a buyer for your investments, you may sell them through us by providing us with details of the purchaser, the price to be paid and the number of investments to be sold. If the buyer wishes us to account to them for the investment proceeds, they will need to be registered as a Berkeley Rutherford member (although we shall be able to refuse to accept membership applications at our absolute discretion).
5.3 We may (but are not required to) offer a bulletin board on the Website to assist members to buy and sell investments amongst themselves from time to time. Where we offer this service, we will facilitate transactions that a buyer and seller have agreed between themselves and have notified us of through the Website.
5.4 We may charge fees for registering transfers as set out in the Fees Table on the Website.
6.1 We do not charge fees to you for arranging for you to invest in newly issued securities, as we get paid by the Issuer. Accordingly, the returns quoted to you are not reduced by our fees.
6.2 We or other persons may, however, charge fees for facilitating the sale of investments before the end of their term or administering investments held in an ISA.
6.3 Details of the fees we charge to you and to Issuers are set out in the Fees Table on the Website.
6.4 Unless otherwise stated, fees are quoted exclusive of VAT, where applicable.
7.1 If you no longer want to be a member of Berkeley Rutherford, provided you have no investments with us, you can let us know by email and we will end your membership straight away. Termination will not affect the terms of any investment you have entered into.
7.2 We may terminate your membership in respect of making new investments at any time and for any reason, including but not limited to breach of these Terms and Conditions, applicable law, mis-use of our Website or account inactivity for a period of 12 months or more. If you hold investments through us, our cancellation of your membership will not affect the charges we will levy to the Issuer and we will continue to maintain your account in accordance with clause 4.
8. Conflicts of interest
8.1 We will generally provide the directors to the Issuer of Super Bonds and BPR Investments. If there is a default on your investment by the Super Bond Issuer or BPR Investment, we enforce the contractual commitments of the Issuer on your behalf and seek to procure the appoint independent directors to the Issuer or independent advisers to seek recovery if we deem it to be in your interests. As default by the Issuer will generally be attributable to the default of a person to whom the Issuer has provided finance, we anticipate that our interests will be aligned with the interests of investors in seeking a full recovery.
8.2 We receive payment of our fees from Issuers.
8.3 Conflicts that are specific to a particular investment shall be disclosed in the relevant Offer Document on the Website.
8.4 You may request a copy of our full conflicts of interest policy at any time.
9. Complaints and compensation
9.1 We and ShareIn have established procedures in accordance with the Financial Conduct Authority's rules for the effective consideration of complaints. Please contact us to request a copy of our complaint handling policy. We will refer complaints relating to ShareIn or MangoPay to the appropriate party on your behalf.
9.2 If you are still unhappy with the outcome of a complaint, you may be able to refer the complaint to the Financial Ombudsman Service at South Quay Plaza, 183 Marsh Wall, London E14 9SR. Telephone 0800 023 4567 or email firstname.lastname@example.org . MangoPay is not subject to the jurisdiction of the Financial Ombudsman Service. Further information, including information about eligibility for the Financial Ombudsman Service is available at www.fos.org.uk.
9.3 ShareIn participates in the Financial Services Compensation Scheme (the "FSCS"). If we or ShareIn owe you money in connection with the Berkeley Rutherford service and are unable to pay it, then you may be entitled to compensation from the FSCS, up to a maximum of £50,000.
9.4 If MangoPay becomes insolvent, any obligations it owes you will not be covered by the FSCS. Provided MangoPay has administered your account properly, its creditors should not be able to access money it holds for you in an electronic wallet.
9.5 For more information, including information about eligibility, you can contact the FSCS in writing at 7th Floor, Lloyds Chambers, Portsoken Street, London, E1 8BN by telephone on 0800 678 1100, by email to email@example.com or by going to www.fscs.org.uk.
10.1 You shall be liable to us for any loss or damage suffered by us as a result of any breach of these Terms and Conditions or the terms of any investment you make through Berkeley Rutherford.
10.2 We shall not be liable to you for any loss or damage which you may suffer as a result of being a member of Berkeley Rutherford or using the Berkeley Rutherford services except where such loss or damage arises from our breach of these Terms and Conditions or was caused by our negligence, wilful default or fraud. We are not responsible for any breach of these Terms and Conditions arising from circumstances outside our reasonable control. Our total liability to you in connection with these Terms and Conditions, your membership of Berkeley Rutherford and your use of the services provided via the Website shall not exceed the amount of money you have invested giving rise to the liability.
10.3 Nothing in these Terms and Conditions shall limit our liability for personal injury or death, fraud, nor for any other liability, the exclusion or limitation of which is not permitted by applicable law or regulation.
10.4 When we make forward-looking statements, we will base them on reasonable assumptions, but we shall not otherwise be responsible for the achievement of such statements where they are outside of our control.
11. Intellectual property
11.1 Subject to clause 11.3 below, as between you and us, we own all present and future copyright, registered and unregistered trademarks, design rights, unregistered designs, database rights and all other present and future intellectual property rights and rights in the nature of intellectual property rights existing in or in relation to the Website.
11.2 If and to the extent that any such intellectual property rights vest in you by operation of law or otherwise, you agree to do any and all such acts and execute any and all such documents as we may reasonably request in order to assign such intellectual property rights back to us.
11.3 You shall retain ownership of all copyright in data you upload or submit to the Website. You grant us a world-wide exclusive, royalty-free, non-terminable licence to use, copy, distribute, publish and transmit such data in any manner.
12. Amendments to these Terms and Conditions
We may need to update or amend these Terms and Conditions from time to time to comply with law or to meet our changing business requirements. We may make such changes without your specific agreement where those updates are, in our reasonable opinion, of an immaterial and routine nature and may not always be able to give you advanced notice of such updates or amendments but we will always post them on our Website so you can view them when you next log in. By continuing to use the Berkeley Rutherford service, you agree to be bound by the terms of any such updates and amendments.
13.1 These Terms and Conditions are governed by and to be construed in accordance with English law. In the event of any matter or dispute arising out of or in connection with these Terms and Condition, you and we shall submit to the non-exclusive jurisdiction of the English courts.
13.2 If any of these Terms and Conditions is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the remainder shall, so far as possible, continue in full force and effect.
13.3 No single or partial exercise, or failure or delay in exercising any right, power or remedy by us shall constitute a waiver by us of, or impair or preclude any further exercise of, that or any right, power or remedy arising under these Terms and Conditions or otherwise.
13.4 In the event of our insolvency, MangoPay will continue to hold your money pending investment, but will not facilitate any new investments. MangoPay will notify you of changes to reporting requirements in such event.
13.5 In the event of ShareIn's or MangoPay’s insolvency, we shall attempt to find an alternative services provider to enable the continued provision of the services to investors.
13.6 We and ShareIn may exercise any of our rights or discharge our obligations under these Terms and Conditions in our or ShareIn's own capacity or through any company or other legal entity which has all relevant legal authorisations, licences or permissions to discharge those functions. Other than ShareIn and MangoPay, which shall be entitled to exercise rights under these Terms and Conditions, no other person shall have rights to enforce terms under the Contracts (Rights of Third Parties) Act 1999.
14. Contacting us
If you have any questions about these Terms and Conditions, or wish to contact us for any other reason, you can contact us by telephone on: 020 3137 2417 or by email to: firstname.lastname@example.org.