Issuer Agency Statement
This Agency Agreement (the “Agreement”) is made and entered into between you and P2P Financial Inc (“The OCMX”) and is effective as of acceptance by The OCMX of your sign-up as an Issuer. In this agreement, “P2P Financial Inc.”, “The OCMX”, “we”, “us” or “our” means The OCMX and “Issuer,” “you” or “your” means a registered Issuer. In addition, we have given specific meaning to certain other words in this Agreement. “Web site” means all information, functionality, and otherwise related to the The OCMX web site, The OCMX blog, OCMX Social Media sites or channels, any OCMX emails, and any related communications. “Registered user” means a user of the The OCMX Web site who has been allowed by The OCMX to participate either as an Issuer or as an Investor. “Issuer” means a registered user, including any represented businesses or funds, who requested financing or offered to sell securities of any kind through our Web site. “Investor” means a registered user, including any represented business, for the purpose of viewing opportunities on the Web site, providing financing, or buying securities from an Issuer. “Securities Offering” means any information provided by an Issuer though our Web site for the purpose of obtaining financing or selling securities. “Client” means an Investor who has signed the The OCMX Account Application form, made an initial deposit, and has been accepted by The OCMX thereafter. “Offer” means an offer made by an Investor who relied on information provided in the Securities Offering to purchase securities from the Issuer. “Offering Contract” means and includes any Subscription Agreement, Offering Disclosure Form, or any other agreement entered into related to the sale or distribution of a security.
The OCMX is registered as a dealer in the category of Exempt Market Dealer and facilitates the entering into of Offering Contracts between Issuers and Investors. You should seek advice from your current advisor as your advisor can help to ensure that your own circumstances have been properly considered and any action is taken on the latest available information and circumstances.
The eligibility to participate and to use the Web site is subject to final determination by The OCMX.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereto hereby covenant and agree as follows:
ARTICLE 1 – AGENCY APPOINTMENT
(1) You hereby appoint The OCMX as your agent to present on your behalf each Offering Contract under the terms of this Agreement.
(2) You hereby appoint The OCMX to be your agent to represent your Securities Offerings and to offer for sale or distribution any securities originated under such Securities Offerings.
(3) You may revoke this appointment and terminate this Agreement at any time if you do not have any Securities Offerings posted.
(4) If you choose to revoke your appointment of The OCMX as your agent, your registration as an Issuer will be terminated.
(5) Any Offering Contracts you have entered into prior to the effective date of termination shall remain in full force and effect in accordance with their terms and the terms of this Agreement.
ARTICLE 2 – ISSUER REGISTRATION AND ISSUER ELIGIBILITY
2.1 Registration as a The OCMX Issuer
(1) You are registering as an Issuer on our Web site so that you may be eligible to post Securities Offerings for display on our Web site and to enter into Offering Contracts with Investors using The OCMX.
(2) You must read, agree with, and accept all of the terms and conditions of this Agreement and all documents incorporated to this Agreement by reference before you can be registered as an Issuer.
2.2 Registration Criteria
(1) In order to register as an Issuer, you must be a natural person of the age of majority and have the legal capacity to enter into, execute, and perform this Agreement, and if required, to enter into, execute, and perform this Agreement on behalf of a business for which financing or a sale of security is being requested.
(2) You must not be an undischarged bankrupt or not be presently subject to a plan of arrangement under the Companies’ Creditors Arrangements Act (Canada) or the Bankruptcy and Insolvency Act (Canada).
2.3 Identity Verification
(1) You acknowledge and agree that you will be required to disclose certain personal information.
(2 You acknowledge and agree that we may share your information with third parties in order to confirm your eligibility and to verify your identity information.
2.4 Authorization to Verify Other Information
(1) You may be asked to provide us with certain information and documentation for identity verification purposes.
(2) You warrant and represent that the information you provide to us is accurate and complete and that you meet all of the eligibility criteria for an Issuer as set out in this Agreement.
(3) You authorize us to verify any information you provide to us in connection with your participation in our Web site as an Issuer, and you agree that we may contact you or third parties to verify the information you provide.
(4) You agree to notify us promptly of any changes to your status that may affect your eligibility to participate in our Web site.
(5) You acknowledge that you may be asked to confirm and renew your eligibility to participate in our Web site from time to time and you agree to promptly provide us with any requested information and documentation in order to remain registered.
ARTICLE 3 – REPRESENTATIONS AND WARRANTIES
3.1 Issuer’s Representations and Warranties
(1) You warrant and represent to us, and acknowledge that our provision to you of access to our Web site is premised in part on our reliance on your representation and warranty, that:
(a) You have the legal capacity to enter into, execute and perform this Agreement on your behalf and if required on the behalf of any represented business;
(b) You are not an undischarged bankrupt or not presently subject to a plan of arrangement under the Companies’ Creditors Arrangements Act (Canada) or the Bankruptcy and Insolvency Act (Canada); and
(c) All information you have provided to us is true, current and correct as of that date.
(2) You acknowledge and certify that all information provided in your Securities Offering is true and contains no omissions or misrepresentations. You acknowledge and agree that The OCMX may review and inspect your Securities Offering and request you to certify or provide proof of the information submitted.
(3) If you are entering into this Agreement not as an individual, you warrant and represent to us that:
(a) Every individual executing this Agreement has all the necessary power and authority to execute and perform this Agreement on the Issuer’s behalf;
(b) The execution and performance of this Agreement will not violate any provision of the Issuer’s charter documents, by-laws, indenture of trust or partnership agreement, or other constituent agreement or instrument governing the Issuer’s formation or administration; and
(c) The execution and performance of this Agreement will not constitute or result in a breach or default under, or conflict with, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking to which the Issuer is a party or by which the Issuer is bound.
3.2 The OCMX’s Representations and Warranties
We represent and warrant to you that:
(1) To the best of our knowledge, The OCMX complies in all material respects with applicable laws.
(2) If applicable laws change such that our Web site no longer complies on a material basis with such applicable laws, we will, in our sole discretion, and on a best efforts basis, attempt to amend the service in order to comply.
ARTICLE 4 – SECURITIES OFFERING PROCESS
4.1 Process Acknowledgement
You hereby acknowledge that:
(1) You must disclose all material information (including forward-looking information) without any omissions or misrepresentation.
(2) All information in your Securities Offering will be provided to the Investor and may be integrated into your Offering Contract. Your Offering Contract or any part of it may be considered to be an offering memorandum for your security under securities laws.
(3) Questions and answers regarding your Securities Offering will be posted to the Web site to help Investors make decisions about your Securities Offering and may be integrated into your Offering Contract.
(4) The information provided in your Securities Offering, including business plans, ideas, locations, and any attachments, will be posted on the Web site and available to Investors.
(5) The OCMX has the right, in our sole discretion, with or without cause, to remove and cancel any Securities Offering for any reason whatsoever from our Web site and to suspend your right to post a Securities Offering, or otherwise participate, with or without notice.
(6) Your Securities Offering will be posted on our Web site for a limited period of time as set by The OCMX (“Offering Period”). During that Offering Period, Investors will be able to submit their offers to you. With the exception of any accepted Offers, a Securities Offering may be cancelled at the end of the Offering Period. During and at the end of the Offering Period, you will be able to accept any one of the Offers submitted by Investors or cancel your Securities Offering.
4.2 Before the End of the Offering Period
If, before the end of the Offering Period, we reasonably determine that the Securities Offering:
(a) contains materially inaccurate information (including, but not limited to, unintended inaccuracies resulting from errors by The OCMX, inaccuracies in regards to the business and its financial information, or inaccuracies resulting from changes in the credit profile between the date the Securities Offering is posted and the date the Securities Offering is to be funded), or was posted illegally, or
(b) violates any applicable laws, or
(c) otherwise is inconsistent with this Agreement,
we may refuse to post the Securities Offering, or if the Securities Offering has already been posted, remove the Securities Offering from our Web site.
4.3 Authority to Display Securities Offering
(1) You acknowledge that a quick summary of your Securities Offering may be displayed to the general public. This means that people who visit the Web site may be able to view a quick summary of your Securities Offering, such as your Display Name, the desired financing amount, type of securities, desired interest rate, and the purpose of the Securities Offering.
(2) You acknowledge and agree that your Securities Offering will be posted on the Web site and Investors will be able to see all of the information in your Securities Offering.
(3) You acknowledge that we facilitate the online distribution and publication of user submitted information including but not limited to information contained in the Securities Offerings. By submitting or posting information to any public or non-public area of the Web site you grant The OCMX the royalty-free, perpetual, irrevocable, sub-licensable (through multiple tiers), non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display the content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in such information. You also warrant that the holder of any rights, including moral rights in such information, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You also permit any The OCMX user to access, display, view, store, and reproduce such content for personal use. Subject to the foregoing, you retain any and all rights that may exist in information placed by you on the Web site.
4.4 No Guarantee
We do not warrant or guarantee that:
(1) Your Securities Offering will be matched with any Offer from any Investor.
(2) You will receive an Offer from the Investor as a result of posting a Securities Offering.
(3) You will receive a desired amount, interest rate, or any other condition requested in your Securities Offering.
(4) Any Offer you receive for your Securities Offering will result in the signing of any agreement to purchase securities or the receipt of any monies.
ARTICLE 5 – INVESTOR OFFERING PROCESS
You hereby acknowledge that:
(1) The Investor can submit an Offer to your Securities Offering and may state the proposed amount, interest rate, or any other condition.
(2) You may receive multiple Offers from different Investors. Those Offers may have different amounts and different conditions.
(3) You may accept or decline any Offer during the Offering Period.
(4) After you accept an Offer from the Investor, The OCMX will verify the Investor’s information, prepare documents and forms, and facilitate their execution. Therefore, there may be a cancellation fee payable in order to cancel any accepted Offer.
(5) The Investor has a statutory power to cancel the agreement to purchase securities within 2 business days after signing it.
ARTICLE 6 – OFFERING CONTRACTS
(1) After you accept an Offer from an Investor, The OCMX will help prepare documents and forms and help facilitate their execution. You should review those documents and make sure you understand your rights and obligations.
(2) You may not sell, transfer, assign, set over or convey your right, title or interest in any Offering Contract, or pledge, or in any way convey a security interest in any Offering Contract.
(3) After all required documents, agreements, and forms are executed by you and an Investor, The OCMX will collect funds from the Investor. The Investor has a statutory power to cancel the agreement to purchase securities within 2 business days after signing it. The OCMX will hold the funds in its trust account until that right has expired. When the two day cancellation right lapses, we will disburse all proceeds to you after deducting any applicable.
ARTICLE 7 – OUR RIGHT TO VERIFY INFORMATION AND CANCEL A SECURITIES OFFERING
(2) If anyone notifies us in writing that a Securities Offering may be inaccurate or fraudulent, we will explore the allegation, using commercially reasonable efforts.
(3) You agree that:
(a) we have the right to verify the accuracy of all information provided by you in connection with registration, Securities Offerings, and Offers;
(b) we have the right to determine, in our reasonable discretion, whether you are using, or have used, the Web site illegally or in violation of any laws for purposes of fraud or deception, or otherwise in a manner inconsistent with this Agreement;
(c) we may conduct our review at any time before, during or after the posting of a Securities Offering, or before advancing the funds;
(d) you will respond promptly to our requests for information in connection with your Securities Offering, accounts, or your registration on our Web site.
(3) We will notify you if we decline to allow your Securities Offering to be or to remain posted on our Web site or if we decline to allow your Offering Contract to be created.
ARTICLE 8 – PRIVACY
(3) You acknowledge that under certain circumstances, we may have a legal duty or right to disclose personal and other information.
(4) You acknowledge that we may share your information, including but not limited to your name, address and transaction information, with such governmental or regulatory parties or such other bodies as may be required by our regulators or licensors and such governmental or regulatory parties will be subject to different privacy and confidentiality policies and legal requirements.
ARTICLE 9 – SECURITIES LAWS REQUIREMENTS
(1) You acknowledge that under securities laws (i) the Offering Contract and any other similar agreement by itself may be considered to be a “security”, and (ii) you as Issuer are considered to be the sole “issuer” of that “security”, and (iii) all information posted by you in the Securities Offering may be integrated into your Offering Contract which may be considered your offering memorandum. Consequently, securities laws apply to all aspects of your dealings with The OCMX and all transactions, communications, and negotiations with any Investor.
(2) You hereby acknowledge that the accredited investor exemption or minimum amount investment exemption is required in order to sell or distribute any of your Securities Offerings. For greater certainty, you hereby acknowledge that only investors who fall under exempted categories as defined under Canadian Securities regulators’ National Instrument 45-106 are allowed to purchase or invest in any of your Securities Offerings.
(3) Securities laws require Issuers as issuers of securities to file various prescribed forms with securities regulatory authorities within the prescribed time period. You hereby certify that you will certify and file those forms with the Canadian securities regulatory authorities.
(4) Securities laws require that certain fees be paid by the Issuers as issuers of securities on filing of the prescribed forms. You hereby certify that you will pay the prescribed fees with the applicable securities regulatory authorities.
(5) Securities laws provide Investors as investors in securities or security agreements a right of action or a right of rescission against Issuers, as issuers of securities, if there is a misrepresentation in the Securities Offering. You acknowledge that you will be fully responsible and liable for any misrepresentation and false information provided to the Investor.
(6) Securities laws require that any material forward-looking information shall be disclosed in an Issuers’ offering memorandum and that any such material forward-looking information disseminated must only be that which is set out in the offering memorandum. You acknowledge and agree that you will comply with the securities law and that any Offering Contract will disclose all appropriate material forward-looking information.
(7) You acknowledge that you may be subject to penalties under applicable securities laws should you fail to comply with applicable securities laws.
(8) You hereby authorize us to collect and submit certain personal information (including your name, address, telephone number and total amounts obtained by you) to the securities regulatory authorities on your behalf and on behalf of The OCMX. This information is being collected on behalf of and used by the applicable securities regulatory authorities, or, where applicable, the regulators under the authority granted in securities legislation for the purposes of the administration and enforcement of securities legislation.
ARTICLE 10 – ISSUER PROTECTIONS
Section 2(2)(a) of the Ontario Consumer Protection Act (2002) (the “CPA”) provides that the CPA does not apply in respect of consumer transactions regulated under the Securities Act (Ontario). In addition, CPA does not apply in respect of an individual who is acting for business purposes.
Despite non-applicability of CPA, The OCMX is committed to provide full and complete disclosure to Issuers and Investors.
ARTICLE 11 – NOT OFFERING ANY ADVICE:
The OCMX provides information for informational and disclosure purposes only. Any and all information provided on its Web site or anywhere related to its Web site is not intended to provide specific financial, investment, tax, legal, accounting or any other advice to you, and should not be acted or relied upon in that regard without seeking the advice of a professional. Your advisor can help to ensure that your own circumstances have been properly considered and any action is taken on the latest available information. The OCMX does not open any accounts for Issuers. Therefore, you agree that any grant to you from The OCMX or ability to access, sign up to, become a member, create a profile, receive emails, create or make posts to the Web site, reply to posts on the Web site, use any tool on the Web site, subscribe to, or otherwise use or view this Web site and its services in no event shall be considered to be an encouragement to leave your current business or service provider or an opening of an account of any kind with The OCMX or with any of its principals, directors, or officers.
ARTICLE 13 – THIRD PARTY PRODUCTS AND SERVICES
You hereby acknowledge that:
(1) From time to time we may feature products or services provided by third parties on our Web site. You have the option of agreeing to accept these promotional materials provided by third parties.
(2) You will not be required to purchase any third party products offered by The OCMX and can do so solely at your own discretion.
ARTICLE 14 – RESTRICTIONS
(1) We may in our sole discretion, with or without cause and with or without notice, restrict your access to the Web site.
ARTICLE 15 – PROHIBITED ACTIVITY
(1) You agree that you will not do the following in connection with any Securities Offerings or Offer:
(a) make any false, misleading or deceptive statements or omissions of material fact in your Securities Offering;
(b) misrepresent your identity, or describe, present or portray yourself as a person or entity other than yourself;
(c) represent yourself to any person, as a representative, employee, or agent of The OCMX or any of its affiliates or subsidiaries, or purport to speak to any person on behalf of The OCMX or any of its affiliates or subsidiaries;
(d) give, or attempt to give, any Investor any fee in exchange for such Investor’s agreement to finance your Securities Offering or purchase your security, or propose or offer any fee, bonus, additional interest, kickback or thing of value of any kind, in exchange for a Investor’s agreement to finance your Securities Offering or purchase your security;
(e) contact Investors in ways other than as authorized under this Agreement or by The OCMX;
(f) make any payments directly to any Investor or in any manner not specifically authorized in this Agreement;
(g) post, upload, publish, display, transmit, share, store or otherwise make or attempt to make publicly available on our Web site or on any other web site, or in any email, blog, forum, medium or other communication of any kind, any private or personal information of any other Registered User, Visitor or other third party, including, without limitation, names, addresses, phone numbers, email addresses, social insurance numbers, driver’s license numbers, bank account or credit card numbers, photos or videos, whether or not such private or personal information is displayed on or ascertainable from the Web site, or obtained or obtainable from sources unrelated to our Web site (such as from a “Google search” or other online research);
(i) post, upload, publish, display, transmit, share, store or otherwise make or attempt to make available on the Web site any material (i) that infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) that violates applicable laws; (iii) that is defamatory or libelous; (iv) that is lewd, hateful, violent, pornographic or obscene; (v) that violates any laws regarding unfair competition, antidiscrimination or false advertising; (vi) that promotes violence or contains hate speech; (vii) that contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines;
(j) violate any laws including but not limited to, the Interest Act, the Criminal Code, federal and provincial privacy laws and regulations;
(k) engage in, or participate in any transaction, or activity, or course of conduct that you know, or ought reasonably to know, results in or contributes to a misleading appearance of financing activity on, or an artificial financing rate for, any Securities Offering, or interferes with market processes and natural markets, or perpetrates a fraud on any person or company; and
(2) We may in our sole discretion remove material from any Securities Offering, posting or other transaction on our Web site that we in our unfettered discretion believe is contrary to this Article.
(3) You acknowledge that you may have personal liability if you fail to safeguard your Display Name, email, or password.
(4) You hereby agree to alert The OCMX immediately if you identify any fraudulent activity in connection with our Web site.
ARTICLE 17 – INDEMNIFICATION
17.1 The OCMX Indemnification
(1) The OCMX will indemnify you for any claim made against you as a result of:
(a) The OCMX failing to comply with applicable legislation, including applicable securities legislation.
(2) Notwithstanding Section 17.2(1) above, The OCMX shall not be obligated to indemnify you against any claims, losses, liability or expense (including, without limitation, costs, charges, legal fees and disbursements) that you may suffer or incur as the result of or based upon any negligent act or omission, willful misconduct or fraudulent action on your part.
ARTICLE 18 – OUR RIGHT TO MODIFY TERMS AND INFORMATION SUPPLIED BY YOU
You authorize us to correct clerical errors or remove information appearing in the information you provide on our Web site, including the information provided in your Securities Offering, without notice to you, although we expressly undertake no obligation to identify or correct such errors or remove any private or sensitive information.
ARTICLE 19 – ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto and supersedes all previous agreements and understandings, whether oral or written, express or implied, with respect to the subject matter of this Agreement. Any amendment shall be effective upon posting such amended Agreement on the Web site or otherwise delivered to you. You understand and agree that your continued use of the Web site after we have posted any amended Agreements constitutes your acceptance of the amended Agreement. The parties agree that a facsimile or any other electronic transmission or posting to this Web site of this Agreement shall constitute an original and legally binding document.
ARTICLE 20 – NOTICES
All notices and other communications under this Agreement shall be given by email to your registered email address, and shall be deemed to have been duly given and effective upon transmission. If your registered email address changes, you must notify The OCMX by sending an email to email@example.com or by calling us.
ARTICLE 21 – NO WARRANTIES
Except for the representations contained in this Agreement and implied warranties under applicable laws, neither you nor we make any representations or warranties to one another.
ARTICLE 22 – LIMITATION ON LIABILITY
In no event shall either you or we be liable to one another for any lost profits including special, exemplary, consequential or punitive damages, even if informed of the possibility of such damages. The OCMX is not responsible in any manner for direct, indirect, special, incidental or consequential damages, however caused, when you transmit confidential information to us or when we communicate or display such information over the internet. The OCMX’s total liability under or arising out of this Agreement shall be limited to the aggregate amounts paid or due and owing by you to us hereunder.
ARTICLE 23 – LANGUAGE
The parties acknowledge that they have requested that this Agreement be prepared in English. Les parties reconnaissent avoir exigé que la présente et tous les documents connexes soient rédigés en anglais.
ARTICLE 24 – DOCUMENTS INCORPORATED BY REFERENCE
The following documents and policies are incorporated by reference into this Agreement:
(3) Risk Disclosure.
ARTICLE 25 – APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, regardless of the laws that might otherwise govern under applicable Ontario principles of conflicts of law. Any action, suit, or proceeding relating to this Agreement shall be brought only in the courts, provincial or federal, located in Toronto, Ontario, Canada, and the parties hereby consent to the exclusive personal jurisdiction of such courts.
ARTICLE 26 – GENERAL
(1) You may not assign, transfer, sublicense or otherwise delegate your rights under this Agreement to another person. Any such assignment, transfer, sublicense or delegation in violation of this Article shall be null and void. This Agreement enures to the benefit of and binds you and us and our respective heirs, executors, administrators, personal and legal representatives and successors.
(2) Any waiver of a breach of any provision of this Agreement will not be a waiver of any other subsequent breach. Failure or delay by either party to enforce any term or condition of this Agreement will not constitute a waiver of such term or condition.
(3) In this Agreement words importing the singular number only shall include the plural and vice versa, words importing a specific gender shall include the other genders, and references to persons shall include individuals, partnerships, trusts, associations, unincorporated organizations and corporations.
(4) For every provisions of this Agreement, time shall be of the essence.
(5) If any provision in this agreement is determined to be unenforceable, such provision shall be severed from the agreement, and the remaining provisions shall continue to be given in full force and effect.
(6) The provisions under the heading and before Article 1 form an integral part of this Agreement.
(7) The division of this Agreement into Articles and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
ARTICLE 27 – CONFIRMATION
You agree that you have read, understand and agree to the terms and conditions of this Agreement and all documents incorporated by reference, including documents in Article 24 of this Agreement, as may be amended from time to time by The OCMX in its sole discretion.