Terms and Conditions
These Terms and Conditions constitute an agreement between You and each of Thundering Herd Pty. Ltd. ACN 603 726 085, Thundering Herd Capital Pty Ltd ACN 634 036 169, Thundering Herd Funds Management Pty Ltd ACN 634 036 329 and Acentus Pty Ltd ACN 603 726 530 (collectively, Thundering Herd).
In these Terms and Conditions:
1.1. "ASIC" means the Australian Securities and Investments Commission;
1.3. "Our Web Portal" means the web portal accessible by subscribers through the Site, where subscribers advertise an interest to purchase or sell securities and managed investment scheme interests;
1.4 "Site" means the website available at www.thunderingherd.com and includes Our Web Portal;
1.5. "Thundering Herd", "We", "Us", "Our" means:
(a) Thundering Herd Pty Ltd (ACN 603 726 085), authorised representative (AFS Representative Number: 001239469) of Acentus Pty Ltd ABN 38 603 726 530 AFSL no. 482717 (TH P/L);
(b) Thundering Herd Capital Pty Ltd ACN 634 036 169, authorised representative (AFS Representative Number: 001277225) of Acentus Pty Ltd ABN 38 603 726 530 AFSL no. 482717 (TH Capital);
(c) Thundering Herd Funds Management Pty Ltd ACN 634 036 329 AFSL no, 519319 (TH FM); and
(d) Acentus Pty Ltd 603 726 530 AFSL no. 482717 (Acentus); and
1.6. "You", "Yourself", "Your" means any person or entity using, or intending to use, this Site or Our Web Portal, as the context indicates.
2. Agreement to be bound by these Terms and Conditions
2.1. These Terms and Conditions govern the use of the Site and Our Web Portal. By becoming a subscriber to Our Web Portal or otherwise using or visiting the Site:
(a) You agree to be bound by these Terms and Conditions in full. If You disagree with these Terms and Conditions, You must not become a subscriber to Our Web Portal or otherwise use the Site;
2.2. We reserve the right to vary these Terms and Conditions. Any variation will be binding on You immediately upon publication of such variation on the Site. Although We will endeavour to alert You to such variations upon or prior to publication, You should regularly review these Terms and Conditions. If You do not agree with any variations to these Terms and Conditions, You must cease using or accessing the Site / Our Web Portal. By continuing to use the Site after We have published the varied Terms and Conditions, You are deemed to have accepted the variations to the Terms and Conditions.
3. Subscriptions to the business introduction services
3.1. In order to access the business introduction services described on Our Web Portal and which are provided by TH P/L and TH Capital ( Services), You must apply for, and be accepted by TH P/L or TH Capital as a subscriber. Subscriptions are for single users only. TH P/L and TH Capital do not permit You to share Your user name or password for these services with any other person.
3.2. You are responsible for keeping Your account information and password secure. If You suspect or become aware of any unauthorised use of Your account or password, You must notify TH P/L or TH Capital immediately. You are responsible for any acts or omissions made using Your subscriber account credentials, until TH P/L or TH Capital have been notified by You of the issue and have suspended Your account.
3.3. You may only access the Services using Your account and password. Your account is personal to You, and You may not transfer or assign Your account to any other person without TH P/L or TH Capital's prior written consent.
3.4. By applying to become a subscriber, You warrant that You are over eighteen years of age and can legally comply with these Terms and Conditions.
4.1. The fees payable to Us by companies or other investees for advertising investment opportunities through Our Web Portal are as set out in the mandate letter entered into between Us and those companies or investee companies.
4.2. Investors may register on Our Web Portal free of charge.
5.1. We confirm that in relation to the provision of the Services, TH P/L and TH Capital do not:
(a) endorse services or markets that may be advertised on or accessed through Our Web Portal;
(b) provide financial product advice;
(c) provide legal advice;
(d) facilitate negotiations or binding contract between investors and financial product issuers, other than the mere provision of the business introduction services; or
(e) receive any fee based on the success or otherwise of any negotiations or contracts entered into by users who have registered to use Our Web Portal; and
5.2. Neither the Site, Our Web Portal, the Services nor any other person associated with the Services, is endorsed or approved by ASIC.
6. Class Order Warning
By subscribing to Our Web Portal, You acknowledge and agree that You are aware that:
6.1. TH P/L and TH Capital provide the Services in accordance with ASIC Class Order CO 02/273 as continued in operation by ASIC Corporations (Repeal and Transitional) Instrument 2017/186 (together Class Order) which provides, amongst other things, an exemption to the disclosure requirements under Parts 6D.2, 6D.3 and 7.9 of the Corporations Act (Cth) 2001 ( Act).
6.2. investment in new business carries high risks. It is highly speculative and before investing in any project about which information is given, prospective investors are strongly advised to take appropriate professional advice, particularly before accepting an offer for issue or sale of any securities or scheme interests;
6.2. the information contained in Our Web Portal has been prepared by or on behalf of the person who is proposing to issue or sell the securities or scheme interests and neither Thundering Herd nor the publisher (if any) has undertaken an independent review of the information contained in Our Web Portal;
6.3. the information contained in Our Web Portal about the proposed business opportunity and the securities or scheme interests is not intended to be the only information on which the investment decision is made and is not a substitute for a disclosure document, product disclosure statement or any other notice that may be required under the Act, as the Act may apply to the investment. Detailed information may be needed to make an investment decision, for example: financial statements; a business plan; information about ownership of intellectual or industrial property; or expert opinions including valuations or auditors’ reports;
6.4. prospective investors should be aware that no established market exists for the trading of any securities or scheme interests that may be offered; and
6.5. Our Web Portal is subject to the Class Order.
7. Your Obligations
7.1 You must:
(a) ensure the accuracy, completeness and lawfulness of any information or material You submit using the Site;
(b) not use the Site in breach of any applicable laws or regulations;
(c) not use the Site to harm, abuse, harass, stalk, threaten or otherwise offend others;
(d) not interfere with, disrupt, or create an undue burden on the Site;
(e) use any method or process (including data scraping) for the purpose of copying or modifying the content on our Site;
(f) do anything which will or is likely to damage, disrupt access to or interfere with the proper operation of our Site.
7.2 Without limiting the above, You must not and must not permit a third party to:
(a) attempt to gain unauthorised access to our Site or circumvent, disable or otherwise interfere with security-related features of the Site; or
(b) upload or permit any virus or malicious code to adversely affect the Site or any associated equipment or data.
8. Links and Advertising
8.1. The Site and Our Web Portal includes advertisements, hyperlinks and pointers to websites operated by third parties. Those third party websites do not form part of the Site or Our Web Portal and are not under Our control. When You link to those websites You leave the Site or Our Web Portal and do so entirely at Your own risk.
8.2. A display of advertising does not imply an endorsement or recommendation by Thundering Herd.
8.3. Citation of hyperlinks/links to third parties the Site or on Our Web Portal is for the purposes of attributing the original source of any third party content.
8.4 We do not claim ownership or rights to content belonging to other parties.
8.5 If You link to content on our Site, You must:
(a) link to Our content directly; and
(b) comply with all copyright, trade mark or other applicable laws;
8.6 Thundering Herd does not consent to the following practices:
(a) attributing a link to our content as being a link to Your own or someone else’s content (for example, using a third party or own logo to link to our content);
(b) attributing a link to our Site and then link somewhere else; and
(c) framing Our content in such a way as to present it as Your own or as belonging to anyone other than us or our licensors.
9. Intellectual Property
9.1 Unless otherwise indicated, the intellectual property rights in the Site and all materials (including all text, data, graphics, logos, software and any other multimedia) made available via the Site ("Content") are either owned by us, or licensed to us, and all rights in the Content are reserved.
9.2 We grant You a limited non-transferable and non-exclusive right to access the Site and view the Content for Your personal use and to the extent required to utilise the Services, subject to these Terms and Conditions. You may also print or otherwise keep a copy of Content for Your own internal record keeping and as may be reasonably necessary to satisfy Your legal and tax obligations. You must not otherwise copy, modify, adapt, publish, transmit, commercially exploit, reproduce or distribute any Content without our permission (or if the Content is owned by a third party, that third party's consent). We reserve the right to review, edit, move or delete any Content from the Site at any time without notice.
9.3 By uploading, transmitting, posting or otherwise making any material including without limitation any text, data, photos, and audio-visual content available via our site ("User Content"):
(a) You retain ownership of the intellectual property rights (if any) in the User Content;
(b) You grant to us a non-exclusive, worldwide, royalty-free, transferable, perpetual licence to use, copy, modify and exploit the User Content in any form, in any media and for any purpose, including the right to sub-licence;
(c) You unconditionally consent to us and our successors, our assigns and sub-licensees using the User Content in a manner which would (but for this clause) infringe any of Your moral rights (as defined by the Copyright Act 1968 (Cth)) in the User Content;
(d) You acknowledge that, unless We expressly state otherwise at the time You upload the User Content, User Content will be considered non-confidential and may be viewed by the public (including by other users of our site);
(f) You agree We may modify or remove any User Content on our Site without notice. We also have the right to disclose Your identity to any third party who is claiming that any User Content posted or uploaded by You on our Site breaches their rights (including intellectual property rights, moral rights or privacy rights or of their right to privacy); and
(g) You agree to indemnify us, our related bodies corporate, and each of their respective officers, directors, agents and employees (collectively "those indemnified") from and against any claims or allegations (including all legal fees and costs) made against any of those indemnified by any third party that our receipt or use of the User Content infringes any third party rights (including intellectual property rights, moral rights or privacy rights) or breaches any law.
9.4 To the extent permitted by law, We are not responsible for, and accept no liability with respect to any User Content.
9.5 We reserve the right to aggregate and analyse data that We collect through the operation of the Site. This may include data that is uploaded, transmitted, posted and otherwise generated by users of the Site, including in the course of using the Services. We may use data analytics tools to produce reports, statistics and datasets for purposes including research and development, performance optimisation, system and data security, and the development of data products such as industry benchmarks, trends and indices.
9.6 We do not guarantee that our Site or any server that makes it available is free of errors, viruses or malicious code, and You are responsible for implementing appropriate and up to date anti-virus measures in place to protect Your computer systems, devices and data.
10. No warranties
10.1 The Site and Our Web Portal are provided “as is” without any representations or warranties, express or implied. We make no representations or warranties in relation to the Site or Our Web Portal or the information and materials provided on the Site or Our Web Portal.
10.2 Without prejudice to the generality of the foregoing paragraph, Thundering Herd does not warrant that:
(a) the Site or Our Web Portal will be constantly available, or available at all; or
(b) the information on the Site or Our Web Portal is complete, true, accurate or not misleading.
10.3 Nothing on the Site or Our Web Portal constitutes, or is meant to constitute, advice of any kind. (If You require advice in relation to any matter (in particular, any legal or financial matter) You should consult an appropriate professional) .
10.4 We do not guarantee or make any representation or warranties in relation to any investment You make (or do not make) in the financial products advertised or for which information is available on the Site or on Our Web Portal. We strongly suggest You take appropriate professional advice, and consider whether a financial product is appropriate for You before accepting an offer for issue or sale of any securities or scheme interests.
11. Breach / Indemnity
11.1. Without prejudice to Our other rights under these Terms and Conditions, if You breach these Terms and Conditions in any way, We may take such action as We deem appropriate to deal with the breach, including suspending Your access to the Site and Our Web Portal, prohibiting You from accessing the Site and Our Web Portal, blocking computers using Your IP address from accessing the Site or Our Web Portal, contacting Your internet service provider to request that it blocks Your access to the Site or Our Web Portal and/or bringing proceedings against You in Court.
11.2. You indemnify Us and undertake to keep Us indemnified against any losses, damages, costs, liabilities and expenses incurred or suffered by Us arising out of any breach by You of any of the provisions of these Terms and Conditions or arising out of any claim that You have breached these Terms and Conditions.
12. Limitations of liability
12.1 Subject to clause 13, We will not be liable to You (whether under the law of contract, the law of torts or otherwise) in relation to the contents of, or use of, or otherwise in connection with, the Site or Our Web Portal:
(a) to the extent that access to the Site or Our Web Portal is provided free-of-charge, for any direct loss;
(b) for any indirect, special or consequential loss; or
(c) for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data.
12.2 The limitations of liability in clause 12.1 apply even if We have been expressly advised of the potential loss.
Nothing in these Terms and Conditions will exclude or limit any warranty implied by law that it would be unlawful to exclude or limit, or exclude or limit Our liability in respect of any:
(a) death or personal injury caused by Our negligence;
(b) fraud or fraudulent misrepresentation on Our part; or
(c) matter which it would be illegal or unlawful for Us to exclude or limit, or to attempt or purport to exclude or limit, its liability.
14. Other parties
14.1 You accept that, as a limited liability entity, We have an interest in limiting the personal liability of our officers and employees. You agree that You will not bring any claim personally against Our officers or employees in respect of any losses You suffer in connection with the Site or Our Web Portal.
14.2 Without prejudice to the foregoing paragraph, You agree that the limitations of warranties and liability set out in these Terms and Conditions will protect Our officers, employees, agents, subsidiaries, successors, assigns and sub-contractors as well as Us.
15. Unenforceable provisions
If any provision of these Terms and Conditions is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of these Terms and Conditions.
If a provision of these Terms and Conditions is determined by a Court to be unlawful and/or unenforceable, the other provisions remain in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted and the rest of the provision will continue in effect.
17. Law and jurisdiction
Your use of the Site and Services will be governed by and construed in accordance with the laws of the State of Victoria, Australia and by using the Site and Our Web Portal, You irrevocably and unconditionally submit to the jurisdiction of the courts of the State of Victoria and the Commonwealth of Australia.
18. Changes to Site functionality and availability
We may add to, suspend or withdraw or restrict the availability of all or any part of our Site for business and operational reasons at any time.
19. No waiver
If We do not take action in relation to a particular breach of these Terms and Conditions, this will not be treated as a waiver by us of any right or remedy in respect of any existing or future breach of these Terms and Conditions.