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 Provider platform and includes funding raised from issuance by an Issuer of Investment Notes;
1.1.5 Funding Provider 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:
1.1.6.1 Any right, option or interest in respect thereof;
1.1.6.2 A cheque, banker's draft or any other bill of exchange or a letter of credit;
1.1.6.3 A banknote, guarantee or an insurance policy; or
1.1.6.4 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 Provider’ platform;
1.1.9 Issuer Lead means any Issuer seeking financing and, for that purpose, is referred by Cloudaron to Funding Provider for submission of loan application and the requested documents or information thereof for, among others, credit assessment and/or know-your-Issuer purposes, via Funding Provider’ Platform so as to determine its eligibility to obtain and benefit from the Facility by prior execution of and entry into the Investment Note.
1.1.10 Law means all applicable laws, rules, regulations, constitution, rulings, interpretations, customs, usages, protocols or directives of any governmental bodies, public officials and/or self-regulatory organisations of Malaysia including any verdicts or awards of any judicial or arbitral bodies;
1.1.11 Funding Provider mmeans Modalku Ventures Sdn. Bhd. (Company No: 1190266-X), a company duly incorporated in Malaysia under the Companies Act 2016 and having its business office at Unit 20-11, Tower A, Vertical Business Suite Ave 3, Bangsar South, No. 8 Jalan Kerinchi, 59200, Kuala Lumpur whose platform is to be used for loan crowdfunding and the proceeds of which are to be distributed to the approved Issuer subject to the terms and conditions of the Investment Note.
1.1.12 Cloudaron means Cloudaron Group Berhad (Company No: 1230681-M), a company, duly incorporated in Malaysia under the Companies Act 2016 and having its business office at No. 2-1, Jalan Sri Hartamas 8, Sri Hartamas, 50480 Kuala Lumpur Wilayah Persekutuan; and
1.1.13 Officer, in relation to Funding Provider means any director, commissioner, officer and/or employee of Funding Provider; and
1.1.14 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 Provider, 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 Provider, 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 (Company No: 1190266-X) (“Funding Provider”) will provide the services (“Services”) to you on www.mysmeplus.com (the “Website”). You agree that Funding Provider shall have sole and absolute discretion to determine whether the Services are to be provided by Funding Provider, and Funding Provider may refuse to provide any Services without giving any reason or incurring any liability to you as a result.
3.2 Funding Provider’ provision of Services shall be subject at all times to the Law and these T&Cs, and Funding Provider will not be liable as a result of any actions taken by any party to or any consequences suffered by any party due to non-compliance with the Law and these T&Cs.
3.3 Unless otherwise specified, the Services provided by Funding Provider may involve arranging for a Loan, or such other services as Funding Provider may introduce from time to time.
4 ACKNOWLEDGMENT
4.1 You understand, acknowledge and agree that Funding Provider 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 Provider’ role is merely administrative and mechanical in nature in arranging for the Issuer to enter into a Facility with Investors and as such Funding Provider is not regulated by laws regulating the business of and does not carry out any activities within the ambit of or relating to moneylending, financing business and the taking of deposits in the course of carrying on a deposit-taking business.Any decision of Funding Provider in respect of approval or rejection of financing or loan application of the Issuer Lead is irrefutable and final unless otherwise decided by Funding Provider in its sole discretion.
4.3 You understand, acknowledge and agree that Funding Provider 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 Provider provides Services to you.
5 PERSONAL DATA PROTECTION
You hereby unconditionally agree that Funding Provider may (in good faith and with due observance of the Law) receive, collect, retain, store, process, disclose, access, review and/or use personal data, information or document (including sensitive personal data) about you, as required for or in relation to (in the sole discretion of Funding Provider), among others, (i) the provision of services of Funding Provider or the course of its day-to-day business, (ii) credit assessment or internal review in respect of the Facility; (iii) execution or implementation of the Investment Note and its associated documents or arrangements; (iv) enforcement of Funding Provider’ rights under the Investment Note including collection of any outstanding financial obligations thereunder; (v) compliance with the Law and/or these T&Cs, whether obtained from you and/or from other sources or authorized partners, agents or representatives of Funding Provider in the forms of among others, without limitation, channeling, referral or other partnership mechanisms or cooperation arrangements, in accordance with the Personal Data Protection Act 2010. To the extent that you: (i) remain a party to the Investment Note; (b) are still a user or beneficiary of Funding Provider services or products; and/or (c) have any outstanding contractual or statutory obligations or financial liabilities to Funding Provider, or that Funding Provider has remaining rights or privileges claimable by it or enforceable against you, then yYou further irrevocably acknowledge and agree to the Privacy Notice as published on Funding Provider’ website.
6 DUE DILIGENCE OF A POTENTIAL ISSUER
6.1 Upon receipt of an application for Services, Funding Provider’ credit underwriters will conduct due diligence on the Issuer. During this process, Funding Provider 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 hereby unconditionally gives Funding Provider or its proxies or representatives to do so. 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 Provider as per the Credit Reporting Agencies Act 2010 (as may be amended from time to time).
6.2 Unless Funding Provider is required by Law, or has received prior written permission from the Issuer, Funding Provider will not reveal or disclose documents provided by the Issuer to any third party.
6.3 Upon Funding Provider’ satisfaction of the due diligence results, Funding Provider 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 unconditionally 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 Provider in its sole discretion. 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 Provider, a sum amounting to such proportion of the facility amount as Funding Provider may determine in its absolute discretion, as is required to indemnify Funding Provider for all costs, expenses and fees paid and expended by Funding Provider in, inter alia, processing the Issuer's Facility Request, conducting credit checks, and making other arrangements.
7.5 These T&Cs shall constitute an integral and inseparable part of the Investment Note and the implementation of the Investment Note shall be carried out in a way that it will not hinder the performance of your obligations or enforcement of Funding Provider’ rights under the Investment Note. Any violation of or non-compliance with any provisions of these T&Cs shall constitute a breach of the Investment Note.
8 ISSUER’S 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 Unless otherwise agreed in the Investment Note and to the extent permitted by the Law, where the Issuer fails to repay any debts or installments or settle any financial obligations on the scheduled date, Funding Provider reserves the right to declare it as an event of default (or otherwise provide a written warning to set out a specific day where an event of default will be deemed to occur if the Issuer fails to repay or settle the aforesaid liabilities within a certain period) and, therefore, Funding Provider on behalf of the Investors shall be entitled to make a demand for the payment or settlement of entire outstanding Facility. After occurrence of the event of default, the Funding Provider will attempt to restructure the Issuer’s Facility repayment scheme and may institute legal proceedings to recover the entire outstanding amount of the Facility
8.3 The Issuer is aware of, and agrees to pay all of, the relevant arrangement, miscellaneous fees to Funding Provider 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 Provider as a result of activities Funding Provider undertakes as part of the Services from time to time.
9 UPDATING DATA & REQUEST FOR DATA
Funding Provider 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 Provider within the Notice Period.
The Issuer hereby gives irrevocable and unconditionally permit to provide Funding Provider, upon its request, to obtain information, data or documents pertaining to the Issuer and its account with, made or operated in the platform of Cloudaron (“Requested Data”). For that purpose, the Issuer also irrevocably and unconditionally authorizes and permits Cloudaron to handover and/or disclose the Requested Data to Funding Provider upon its request without having to either obtain prior approval or comply with any formality or procedure or to give compensation or benefit to the Issuer in any forms whatsoever in connection with the aforesaid handover or disclosure of the Requested Data.
10 DATA TRANSFER
All data, information or documents submitted, disclosed or made accessible by you on or via the Platform during the registration, and in the use of any services in, and/or in the course of transactions via the Platform, may be transferred, assigned or disclosed to and collected, stored and used by Funding Societies, as a loan service partner of Cloudaron and provider of financing services available via the Platform ("Data Transfer"), in respect of the provision of loans or financing to you.
For that purpose:
a. You are aware of and will not contest nor reject the implementation of Data Transfer that may happen or be carried out from time to time by Cloudaron and/or Funding Societies as long as you: (i) keep on using or benefiting from the services of Cloudaron and/or Funding Societies; (ii) remain a registered user on the Platform ; (iii) bound to the relevant loan arrangements with Funding Societies and the related lenders; and (iv) have any outstanding, contingent or due and payable liability to Funding Societies and/or the relevant lenders or parties related to the financing and loan services from Funding Societies.
b. You unconditionally accept the implementation of Data Transfer without requiring Funding Societies and/or its related parties to compensate, pay nor provide you with any privileges and/or benefits in any forms whatsoever; and/or
c. The implementation of Data Transfer would not require any prior adherence to or observation of any formality, mechanism or procedure nor approval or consent from any other third party and therefore it substantiates proper compliance of Cloudaron and/or Funding Societies with the Personal Data Protection Act 2010 (PDPA) including its amendments from time to time including any other related laws and/or regulations on data secrecy or privacy.
11 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
11.1 The Issuer represents and warrants to Funding Provider that:
11.1.1 it is [a Malaysian registered sole proprietorship]/[Malaysian registered partnership]/[limited liability partnership]/[private limited company]/[unlisted public company] incorporated under Malaysian laws;
11.1.2 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;
11.1.3 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;
11.1.4 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;
11.1.5 all information provided by the Issuer to Funding Provider 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;
11.1.6 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
11.1.7 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 enforceability of these T&Cs or the relevant agreements, or affect the Issuer’s ability to perform its obligations hereunder.
11.2 The Issuer undertakes that it shall at all times and by any means:
11.2.1 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.
11.2.2 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.
11.2.3 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.
12 AUTHORISATION
12.1 The Issuer irrevocably authorises Funding Provider and its appointed proxies or representatives to:
12.1.1 conduct credit checks on the Issuer;
12.1.2 obtain and verify any information about the Issuer as Funding Provider may, in its sole and absolute discretion, deem fit;
12.1.3 use all relevant sources, which Funding Provider may apply to, to provide any information which Funding Provider may require in connection with the facility;
12.1.4 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 Provider may deem necessary to:
12.1.4.1 any Investor's head office, representative and branch offices and/or any related company or associated company of the Investor, in any jurisdiction;
12.1.4.2 the head office, representative and branch offices of Funding Provider, and/or that of its related companies or associated companies in any jurisdiction;
12.1.4.3 the Securities Commission, Bank Negara Malaysia and any other government or regulatory agency or authority;
12.1.4.4 any Investor’s potential assignees or transferees (subject to the prior consent of Funding Provider) or to any person who has or may enter into contractual relations with the Issuer in relation to the facility application;
12.1.4.5 any credit bureau, including members of such credit bureau;
12.1.4.6 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
12.1.4.7 any other person to whom disclosure is permitted or required by the Law or ordered by any governmental institutions.
13 INDEMNITY
13.1 The Issuer agrees to indemnify Funding Provider 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 Provider as a result of or in connection with the Issuer’s breach of and/or non-compliance with the T&Cs, the Law and/ or the relevant agreements or any steps taken by Funding Provider’ in the event of a breach of these T&Cs or the relevant agreements including any infringement of third party’s rights committed by, or which involves, the Issuer.
13.2 The Issuer shall not, and it shall ensure at all times that Funding Provider 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 Provider are to be indemnified unless it expressly choose or are willing to do so.
14 EXCLUSION AND LIMITATION OF LIABILITY
Neither Funding Provider 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 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.
15 TIME OF ESSENCE
It is a fundamental term of the relationship between the parties that the Issuer will perform its obligations on time.
16 NO WAIVER OF RIGHTS
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.
17 AMENDMENTS
Funding Provider 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 Provider 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. Without prejudice to the foregoing, the entry into or continued entry into the Services after such change shall be deemed as the Issuer’s acceptance and agreement to the same.
18 GOVERNING LAW AND JURISDICTION
18.1 These T&Cs will be governed and construed in accordance with laws of Malaysia.
18.2 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.