Terms & Conditions
Limited Liability Company "BALKANIKA FINANCE", fiscal code 1023600051022, with its registered office in the Republic of Moldova, municipality of Chișinău, Kiev Street, no. 9/1, postal code MD-2068, legally represented by its administrator Mocanu Vladislav, authorized as a provider of crowdfunding financing services by the National Commission of the Financial Market under Decision No. 53/4 dated November 19, 2024, hereinafter referred to as the Provider, with the trade name Balkanika, concludes this Crowdfunding Financing Services Contract with the Client through the Client’s acceptance of its terms and conditions during the process of creating an account on the crowdfunding financing platform managed by the Provider: balkanika.finance, hereinafter referred to as the Platform.
The Platform's Terms and Conditions, accepted by the Client upon account creation, constitute the Crowdfunding Financing Services Contract between BALKANIKA FINANCE S.R.L. and the Client, having the same legal force. Acceptance of these terms is equivalent to entering into a valid contract in accordance with Law No. 181/2023, without the need for a separate document.
Hereinafter, within the meaning of this document, the Terms and Conditions (Crowdfunding Financing Services Contract) shall be referred to as the "Contract". Any reference to the Contract in this document shall designate this set of Terms and Conditions, together with its annexes and related provisions.
I. SUBJECT MATTER OF THE CONTRACT
1.1. The object of this contract is the legal relationship between the Provider and the Client (potential or actual investor, developer or debtor-consumer), under the terms of Law no. 181/2023 on participatory financing services (hereinafter - Law no. 181/2023) and the Provider's internal regulations relevant to the Client, as set out in Annex no. 2 to the contract, with the use of the notions in Annex no. 1 to the contract, of which the Client declares that he has taken cognizance, understood their meaning and accepted them.
1.2. The subject matter of the framework contract for participatory finance services details how the funds collected from investors are used by the project developer or borrower-consumer, making express reference to the conditions of Law 181/2023. The investor's decision to invest in a specific project of participatory financing shall be recorded and signed by the investor according to the attached model (Annex no. 3 to this Contract: "Investment Decision"), which shall also provide the Platform with the possibility of keeping a record of the investment decisions it receives from potential investors, indicating the moment of their agreement to invest. Once the investor has signed the investment decision, it shall be deemed to be an integral part of this Agreement.
1.3. In the case of a loan agreement (a separate agreement will be concluded with the borrower to this effect), the subject matter of the loan agreement includes the total amount borrowed, the interest rate, the repayment terms and any associated guarantees.
1.4. In the case of a contract for investment in the company's share capital (a separate agreement shall be concluded with the investor), the subject matter of the contract shall describe the percentage of the equity stake offered to investors, the pre- and post-investment valuation of the company, the voting rights and the conditions for subsequent exit or sale of the stake.
1.5. The Client Investor, after acknowledging and accepting the contents of the Essential Investment Information Sheet for individual loan portfolio management services, has the right to select the Auto-Invest option on the Platform and the agreed parameters of individual loan portfolio management, whereby the Investor discretionally grants powers to the Platform (gives the right to the Platform). On the basis of these powers of attorney the Platform will exercise discretion on behalf of the Investors only in respect of the Offerings that fall within the agreed parameters, without requiring the Investors to review each individual Equity Offer and make an investment decision in respect of each Offering. Respectively, the Platform will automatically allocate pre-determined amounts from the investor's funds to one or more offers/projects of participatory financing on the Platform, according to the template (Annex No. 4 to this Agreement: "Parameters agreed by the investor for the management of the individual loan portfolio"). The Client Investor has the possibility to withdraw his/her consent to this function on the Platform at any time, up to the amount of the remaining uninvested amount. The Investor Client's consent to revoke this function is deemed to be received by the Platform, if the latter receives an email notification from the Investor Client confirming this fact.
1.6. (1) of Law no. 181/2023, represents the terms and conditions of the provider's platform and is deemed to be concluded by the acceptance of these terms and conditions in the process of creating an account within the participatory financing platform managed by the provider.
II. SUPPLIER PAYMENTS
2.1. In the contract, the Provider details all fees and commissions paid by the Client, taking into account the provisions of art. 11 of Law no. 181/2023 (the list with the type, structure and amount of payments can be consulted on the platform, in the "Platform Tariffs" section, by accessing the link: balkanika.finance/en/fees-en), which contain
a) fixed fees paid by developers/debtor-consumers for placing the project on the participatory finance service platform:
b) Percentage fees from the value of the funds allocated to each project/offer, deducted from the account of the developer/debtor-consumer;
c) percentage fees paid by investors at the time of receiving interest or disposing of shares held in the special purpose vehicle set up in connection with the equity project;
d) other secondary fees or charges
2.2. The Provider shall be entitled to set other payments and fees for the services rendered, which shall be communicated in advance to the Client. The Provider guarantees that all types of remunerations charged and the amount thereof are clearly and accessibly published on the Platform in accordance with the requirements set out in Law 181/2023.
2.3. Any subsequent changes in the remuneration structure for the services provided by the Provider, including the introduction of new fees or changes in the percentage of fees, will be communicated to the Client at least 30 days prior to their application, and will only come into effect after the information on the Platform has been updated and the Client's consent has been obtained, if the change directly affects the Client.
2.4. The Platform shall indicate all information about payments and/or fees applicable by the Provider. Once the terms and conditions have been accepted, the Customer confirms that he agrees to pay them under the conditions and within the terms and within the time limits set by the Provider.
2.5. The Client in its capacity as project developer or borrower/consumer assumes the expenses or fees necessary to contract a loan/participatory finance project through the Platform, which are required to be paid to third parties, such as but not limited to, valuation of real/movable property to be pledged as collateral for the loan, registration of the pledge, notary fees, etc.
2.6. The Client assumes the payment of all related taxes and duties arising from the income that may be generated from the conclusion and execution of loan agreements/participatory financing projects, except for those that may be withheld at source for payment under the tax legislation of the Republic of Moldova.
2.7. Payment transactions for the purpose of accumulation and transfer of funds in the framework of participatory financing transactions shall be carried out by means of cashless payment instruments of payment service providers.
2.8. The individual investor client may also deposit the funds intended for investment in cash, through ATMs, electronic and digital communication devices, including cash remittance services and, where appropriate, through authorized automated remote service systems within the limits allowed by the legislation.
III. GENERAL OBLIGATIONS AND RESPONSIBILITIES OF THE SUPPLIER
3.1. The Provider shall facilitate crowdfunding activities through the Electronic Platform it manages and shall offer the Client the possibility to post crowdfunding offers or to offer loan-based or investment-based crowdfunding.
3.2. The Supplier shall, in accordance with the law and this Contract, use its best endeavors to ensure:
a) obtaining complete and accurate information for an objective risk assessment taking into account the nature of the participatory finance offer and the risk profile of the project developer/borrower/consumer;
b) Appropriate assessment of the creditworthiness of the Client applying for financing;
c) Accumulating the amount according to the offer published on the Platform and transferring these funds to the borrower/project developer.
3.3. Obligations of the Supplier:
a) to provide the Client with complete and accurate information about all the conditions for accessing the crowdfunding services, the applicable fees and commissions and any other costs associated with the crowdfunding services realized on its Platform;
b) to examine in legal terms the applications for participatory funding received;
c) to protect the confidentiality and security of all personal and financial data to which it has access and to use this information only for the purposes of performing the contract and under other conditions expressly provided by law;
d) to manage efficiently and responsibly the loan portfolios and the sums accumulated for investment purposes, ensuring that they are used exclusively for the purposes for which they have been mandated;
e) to provide assistance, adequate support and assistance in the Client's access and use of the Platform;
f) to provide the Client with continuous and undisturbed access to the Platform on which they have registered and placed their equity crowdfunding offers/allocated investments in equity crowdfunding projects/consumer loans;
g) to provide periodic reports to the Client, upon request, on the status of the financing offers published on the Platform, of the amounts accumulated, as well as of the investments made, of the execution of the contracts concluded on its behalf;
h) to identify, assess and manage the risks associated with each crowdfunding offer made through its Platform;
i) other obligations set out in this framework contract.
IV. CUSTOMER OBLIGATIONS AND RESPONSIBILITIES
4.1. The customer undertakes:
a) to comply with the terms and conditions of the Platform, any internal rules or policies of the Provider of which it has become aware prior to the conclusion of the Contract;
b) to provide accurate and complete information requested by the Provider pursuant to Law 181/2023 with reference to its identity, information on its financing offer, financial statements, etc.
c) comply with applicable requirements and regulations on the source of funds, including, but not limited to, regulations on preventing and combating money laundering and terrorist financing;
d) use the Platform in a responsible manner, without engaging in fraudulent, deceptive or illegal activities;
e) to repay loans (in the case of loan-based financing) in accordance with the agreed terms, including the payment of interest and instalments on time under the contracts concluded;
f) promptly notify the Supplier of any changes that might affect their contractual relationship, including changes to relevant personal or financial information;
g) to maintain the security of their account on the Platform, including the use of a unique password and maintaining confidentiality in accordance with the Provider's internal guidelines, instructions and policies;
h) to cooperate with the Provider and the National Commission for Financial Markets, or other control or investigative institutions in any verification, audit or investigation processes;
i) other obligations set out in this framework contract.
V. ACCESS TO THE PROVIDER'S PLATFORM
5.1. In order to access the services on the Platform, the Client, as a user of the Platform, must authenticate in accordance with the Provider's requirements.
5.2. If the electronic address (e-mail address) and the access codes (password) are entered, the Provider is entitled to consider the Client as the person giving instructions and/or performing actions on the Platform and/or making requests to the Provider in his/her own name. The Client must keep the access codes secret (as well as other codes that protect access to the Platform and to the Client's designated bank account for the accumulation of financial resources) and ensure that they are stored on the Client's computer or other device in a manner that does not allow third parties to access this information. Thus, any person who logs on to the Platform using the Client's tools necessary for logging on will be presumed to be a plenipotentiary representative of the Client.
5.3. For the avoidance of doubt, if the Client discloses its access codes to third parties and authorizes them to access the Platform on its behalf, the Client is responsible for any access, use, misuse or disclosure of the access codes.
5.4. The Client understands and confirms that all his actions performed after authentication on the Platform shall be deemed to be properly consented and/or confirmed by the application by the Client of the electronic signature, as provided for by Law no. 124/2022 on electronic identification and trust services.
5.5. The Supplier may refuse the Customer's instructions if:
a) considers them unclear;
b) there is reasonable suspicion that they have not been offered by the Client;
c) there is a risk that the Supplier may be subject to penalties provided by law;
d) there is reasonable suspicion that the Client has illegal purposes by using the Platform.
5.6. The Supplier shall inform the Customer within 10 working days of the refused instructions, stating the reasons for the refusal.
5.7. The Client is obliged to immediately inform the Provider if he believes that someone else knows his access codes, or any other information that protects the access to his designated bank account for the accumulation of funds or can use his identity registered on the platform for other purposes or acting on his behalf in an unauthorized manner.
5.8. The Client's account on the crowdfunding platform will display the following information:
a) details about the funding offer published on the Platform (amount, currency, description of the project/consumer loan, industry, etc);
b) identification details you provided when registering on the Platform;
c) the amount accrued under the financing offer;
d) investor details;
e) transaction history on the Platform and the amount of money invested;
f) details of equity finance deals where investments or loans have been made;
g) access to the Provider's internal policies relevant to the Client (e.g. conflict of interest policy, knowledge testing and loss capacity simulation procedure, etc.).
h) other relevant details as appropriate, depending on the current structure of the Platform and the technologies used.
5.9. The Customer assumes responsibility for the accuracy and relevance of the information, data, documents and statements provided by the Customer. If, at the time of registering on the Platform, performing the authentication procedure or while using the Platform, the Client provides incorrect information and/or fails to update it in a timely manner, the liability for losses caused by such actions of the Client or other persons shall be borne by the Client and/or persons acting on behalf of the Client.
5.10. When the Client registers on the Platform, the Provider sends all notifications to the Client via the e-mail specified by the Client and/or posts them on the Platform. The Client undertakes to regularly check his e-mail address for notifications that may arrive and will respond in a timely manner.
VI. DEBT-BASED FINANCING SERVICES THROUGH THE PLATFORM
6.1. The Provider shall publish on the Platform the procedure for the submission of applications for funding, which includes, but is not limited to, the request for documents and information provided for in Articles 29 and 30 of Law 181/2023.
6.2. The Provider is entitled not to publish a participatory funding request (funding offer) on its Platform if:
a) the amount of funds that could be raised for a single offer of participatory financing could exceed the ceilings set out in Article 4(4). (1) and Art. (1) of Law 181/2023;
b) The customer, as a project developer or consumer borrower, has failed the creditworthiness assessment in accordance with responsible lending requirements and there is a real risk that the customer will default on its loan repayment obligations;
c) the information provided is incomplete, inaccurate or out of date. The supplier is entitled not to publish the tender until these deficiencies are rectified;
d) the proposed offer or project does not comply with the applicable normative regulations, including those related to the protection of personal data or to the prevention and combating of money laundering and terrorist financing;
e) the risk assessment reveals financial or operational risks that exceed the Supplier's risk tolerance or risk management capacity;
f) the existence of a conflict of interest between the Parties or other parties involved, referred to in art. (1) of Law 181/2023, which could affect the impartiality or integrity of the funding process;
g) when the Client is in arrears with payments under other equity crowdfunding offers registered on the Platform under the terms of Art. 32 para. (4) of Law 181/2023.
6.3. The Supplier shall exercise due diligence in the assessment of each case and shall ensure that the decision to publish or not to publish a tender is taken having regard to the relevant legislation and in accordance with the applicable objective, transparent and fair criteria.
VII. ACCUMULATION OF FINANCIAL MEANS
7.1. The terms and conditions of the crowdfunding offer are binding on the Client from the moment the crowdfunding offer is published on the Platform until the date on which the circumstances set out in Article 23 para. (1) of Law 181/2023.
7.2. The parties, by mutual agreement, shall establish the term for the accumulation of financial means under the financing offer, which may not exceed 12 months under the terms of Art. 4 para. (4) of Law No 181/2023 (in the case of the developer), or not more than 6 months under Art. 5 para. (5) of the same law (in the case of the debtor-consumer).
7.3. In the event that the amount of financing provided for in the financing offer published on the Platform is not collected, the Provider, after consulting the Client, may take one of the following decisions:
a) to extend the accumulation period (this possibility is evaluated by the Provider and updated information is provided in the funding offer made public);
b) to reduce the amount of funding if the Client demonstrates that it will be able to obtain the remaining amount of funding from other sources and the investors have been notified with the updated information of the funding offer and have agreed to this;
c) cancel the equity offer and return the proceeds to the investors. These actions by the Provider shall not give rise to any right to claim damages.
7.4. The client has continuous access through the Platform to the status of his offer, including the evolution of the accumulation of funds.
7.5. If the requested amount of funding is fully accrued, the Provider shall notify the Client via the Platform, where applicable, will also use the contact details provided by the Client at the time of the funding request, to send additional notifications. The notification will include the details of the accrual of the amount and the next steps required to complete the participatory funding process.
7.6. Under the terms of Art. (2) and (3) of Law no. 181/2023, the Provider shall transfer the amount of the accumulated sum to the accounts of the Project Developer Client/Consumer Debtor on the basis of a loan agreement to be concluded in advance with the respective Client, which shall contain the list of all investors and the financial means allocated by them on the account of such loan.
VIII. LOAN MANAGEMENT
8.1. The project developer/borrower-consumer client undertakes to repay the loan repayments, interest and other obligatory payments under the loan contract concluded.
8.2. The Provider undertakes to pay the Investor Clients the invested amounts and the related interest according to the repayment schedule, retaining all fees according to the terms of the loan contract and the platform's tariffs.
8.3. In the event of delays or default of the loan, the Provider shall initiate debt recovery and/or guarantee enforcement proceedings (as applicable) on behalf of all investors. The Provider will represent the investors until the loan recovery or guarantee enforcement procedures are finalized. The monies recovered by the Provider shall be remitted to the Investors in accordance with the contractual terms, this Agreement and the Platform's tariffs.
8.4. The Borrower shall actively monitor the performance of the Loan and take appropriate steps to minimize the risks of late payment or default of the Debt, other amounts under the Loan Agreement and this Agreement.
IX. INVESTMENT-BASED FINANCING SERVICES THROUGH THE PLATFORM
9.1. The Provider shall inform the Client of the risks associated with the investments made, including the risk of total loss of the investment and the fact that these investments are not guaranteed by any guarantee fund.
9.2. The Provider is obliged to inform the Customer who is a non-sophisticated investor about the cooling-off and revocation period provided for under Art. 23 of Law 181/2023.
9.3. The Provider shall make available to the Client Investor the Key Information Sheet for each investment, which shall include details of risks, investment characteristics, fees and rights. It is the responsibility of the Provider to keep the Key Information Sheet up to date and to verify the completeness and accuracy of the information provided.
9.4. The Provider will inform the Non-Investor Client if the financing offer is deemed unsuitable for the Non-Investor Client based on the information collected. A risk warning, which shall include the risk of total loss of the funds invested, shall be provided to the Non-sophisticated Investor Client and the Non-sophisticated Investor Client must explicitly acknowledge receipt and understanding of this risk warning.
9.5. The provider is entitled to refuse an investment if the ceilings set out in Art. 27 of Law 181/2023 are exceeded.
9.6. The Provider shall, where applicable, require the Non-Insphisticated Investor Client to simulate its ability to bear losses, representing 10% of the Non-Insphisticated Investor Client's net worth, using information about its regular income, assets and financial liabilities. This loss capacity tool is made available to the Client on the Platform.
9.7. The Provider shall be obliged to initiate the procedure for setting up the investment vehicle immediately after the collection of the required amount for the project and the expiration of the revocation period for all non-sophisticated investors. The Provider shall inform the Investor Customer about the establishment of the investment vehicle within 3 working days from the date of its establishment under the conditions of Art. 37 para. (1) of Law 181/2023.
9.8. The client investor will become a partner/shareholder of the investment vehicle in proportion to his investment, which will constitute a contribution to the share capital.
9.9. The Provider assumes the management of the investment vehicle through its employees, subcontractors or by outsourcing these services, for which it will charge fees retained from its Client.
9.10. The parties understand and confirm that the investment vehicle will carry out only activities necessary for the realization of the investment project, according to Law 181/2023.
X. CLOSE ACCOUNT ON THE PLATFORM
10.1. The Client registered on the Platform may request the closure of his/her account by notifying the Provider by e-mail or via the Platform. The Provider is obliged within 30 days to examine the request.
10.2. Upon receipt of the request to close the account, the Provider may suspend any pending transactions and will carry out the necessary checks to ensure that there are no outstanding financial obligations of the Customer. The Provider may refuse to close the Customer's account if outstanding financial obligations are identified. Before closing the account, the Customer is obliged to exhaust any outstanding balances on his account, including any debts or loans incurred.
10.3. The Client understands that closing an account on the Platform does not release him/her from any obligations he/she may have in relation to transactions on the Platform or obligations undertaken prior to closing the account.
10.4. The Provider may establish additional rules or exceptions regarding the closure of Clients' accounts, which will be clearly communicated and will be accessible to all Clients through the "Terms and Conditions" section placed on the Platform.
XI. THE TERMINATION OF THE CONTRACT FOR EQUITY CROWDFUNDING SERVICES
11.1. This Contract may be terminated at any time by mutual agreement of both Parties or unilaterally by either Party in the event of improper performance or non-performance of contractual obligations.
11.2. The Supplier is entitled to unilaterally terminate the contract if the Customer fails to fulfill the following essential contractual obligations:
a) failure to pay on time;
b) unauthorized use of crowdfunding services, disclosure of confidential information;
c) failure to inform in the manner required by the contract and by Law no. 181/2023 on significant changes in the financial or operational situation, which could affect its ability to fulfill its contractual obligations;
d) is involved in illegal or unethical activities that may damage the reputation or operations of the Supplier;
e) violates applicable legal provisions, which could entail legal liability on the Supplier;
f) giving false statements;
g) repeated refusal to cooperate with the Supplier or to communicate effectively in matters essential to the fulfillment of the contract;
h) did not provide the necessary powers provided for by Law no. 181/2023 for the realization and execution of the contractual obligations;
i) other obligations under this contract and Law 181/2023.
11.3. The Customer is entitled to unilaterally terminate the contract if the Supplier fails to fulfill its essential contractual obligations, such as:
a) non-compliance with the terms of the participatory funding;
b) use by the Provider of the accumulated funds for other purposes;
c) delays in the transfer of funds accumulated on the Client's accounts;
d) failure to respect data privacy and security standards;
e) failure to fulfill the powers for which the Provider has been mandated;
f) providing erroneous, incomplete and unverified information in the key information sheet on the investment;
g) inability to access the Client's account on the Platform for more than 48 hours;
h) increasing payments, fees or other charges without prior notice to the Customer;
i) other obligations under this contract and Law 181/2023.
11.4. The parties may also terminate the contract in other circumstances in accordance with civil law.
11.5. If either Party intends to terminate this contract, it is obliged to provide the other Party with written notice of its intention to terminate the contract. Such notice must be sent at least 30 days prior to the proposed effective date of termination. The notice must be clear, detailed and specify the reasons for the decision to terminate the contract.
11.6. Notification will be considered valid only if sent by means that ensure confirmation of receipt by the Receiving Party, such as registered mail, e-mail with acknowledgment of receipt.
11.7. During the 30-day period following receipt of the notice, both Parties undertake to cooperate to clarify any issues related to the termination of the contract, to resolve any remaining contractual obligations and to minimize any potential misunderstandings or disruptions that could result from the termination of the contract.
XII. MANDATE CLAUSE (CONTRACT)
12.1 By this Mandate clause (contract), the Investor Client hereby authorizes the Provider to represent, sign and manage (administer) at the risk and for the account of the Investor Client, loan agreements with one or more borrowers and/or collateral agreements (pledge, mortgage, surety, etc.), within the limits of the amounts invested and the terms approved by the Investor on his/her Client Profile on the Platform, as well as the terms of this contract.
12.2. The mandate clause (contract) is enforceable against the developer, the borrower-consumer, the state registration authority of legal entities, banks, courts, bailiffs, notaries, registrars of the Real Estate Cadastre PI, the Public Services Agency PI, other central or local public authorities, as well as any other natural or legal persons of public or private law involved in the realization of the participatory financing project or in the execution of the loan contract.
12.3. The loan contracts, as well as the contracts of real and/or personal guarantees concluded in order to guarantee the repayment of the loans granted to the developers/consumer-debtors under the terms of this contract may be enforceable, having in this case the power of enforceable title on the due date of the debt and giving the right to extrajudicial enforcement, without the need to apply to the court.
XIII. DISPUTE SETTLEMENT
13.1. The Parties agree that, in the event of any disputes arising in connection with this Contract or the Participatory Financing Services provided, they will endeavor to resolve disputes amicably within 30 days of the date of written notification of the dispute by either Party.
13.2. If the parties fail to resolve the dispute amicably within the specified period, any controversy or claim arising out of or related to this contract, including those concerning its existence, validity or termination, shall be submitted to and finally settled by the competent courts of the Republic of Moldova.
13.3. Settlement of disputes through the court of law does not exclude the right of the parties to subsequently choose to settle disputes through arbitration. If both Parties agree, they may initiate arbitration proceedings in accordance with mutually agreed arbitration rules after the failure of an amicable dispute settlement.
13.4. Pending the resolution of the dispute, the Provider shall continue to provide the services that are not affected by the dispute, unless this is technically or legally impossible.
XIV. FINAL PROVISIONS
14.1. Situations not regulated by this contract will be resolved in accordance with the provisions of the Rules of Activity of "BALKANIKA FINANCE" S.R.L. as a provider of participatory financing services.
14.2. If any provision of this Agreement shall become invalid or unenforceable, the remaining provisions shall remain in full force and effect. The Parties shall replace any invalid or unenforceable provision with a valid and enforceable provision having the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the Parties under any invalid or unenforceable provision of this Agreement shall be suspended during the period of the Parties' negotiations regarding the substitution of the provision.
14.3. This contract is governed by the laws of the Republic of Moldova.
Annexes:
- Annex 1 to the Framework Service Contract for Participatory Finance - Concepts used when providing participatory finance services.
- Annex 2 to the Framework Service Contract for Participatory Finance - List of the 's internal regulatory acts relevant to the Customer.
- Annex 3 to the Framework Service Contract for Participatory Finance - THE INVESTOR'S DECISION TO INVEST IN A CONCRETE EQUITY PROJECT ON THE BALKANIKA PLATFORM.
- Annex 4 to the Framework Service Contract for Participatory Finance - Parameters agreed by the investor for the management of the individual loan portfolio.