Platform Services Agreement
KOPERASI JASA GERBANG DIGITAL NASIONAL
TECHNOLOGY PLATFORM SERVICES AGREEMENT
THE OFFER AND SALE OF THE RELATED INVESTMENT BY TARGET BENEFICIARIES, HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES OF AMERICA (U.S.) SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), THE SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. SUCH RELATED INVESTMENT MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE STATE SECURITIES LAWS, AND ANY OTHER APPLICABLE SECURITIES LAWS; AND (II) THE TERMS AND CONDITIONS OF THE RELATED INVESTMENT AGREEMENTS. SUCH RELATED INVESTMENT MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS AND RELATED INVESTMENT AGREEMENT. THEREFORE, PURCHASERS OF SUCH RELATED INVESTMENT SHALL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME
Effective Date: January 1, 2022
This Technology Platform Services Agreement (“Agreement”) is by and between Gernas and You.
“Gernas”, “we”, or “us” means Koperasi Jasa Gerbang Digital Nasional, an Indonesian National Cooperative (NIB 0214010200273) with its registered address at:
Tegal Weru RT.001 RW.031 Desa Margodadi, Kec. Seyegan
Kab. Sleman Yogyakarta 65151 Indonesia
"Company" or "You" means the legal entity that is applying for or that has opened an Account to use the Services and the individual applying for the Account. If you are the individual applying for the Account, you represent and warrant that you are an authorized representative of Company with the authority to bind Company to this Agreement ("Administrator"), and that you agree to this Agreement on Company’s behalf.
1. Technology Platform Services.
1.1. Subject to the terms of this Agreement, Gernas will use commercially reasonable efforts to provide the Customer with ongoing access to a digital investment platform (the “Platform”).
Example services provided to the Customer by Gernas' Platform include but are not limited to: a list of available investment opportunities, information about individual investments, a method for selecting and consummating investments of interest, and ongoing support services relating to ongoing investments made by the Customer.
1.2. The Customer acknowledges that precise nature and manner of the features of the Platform may change over time and that the availability of any specific feature does not construe an obligation by Gernas to continue support for that feature.
2. Rights and Obligations of the Customer. The following are the Rights and Obligations of the Customer under this Agreement:
2.1. Provide Gernas all material information concerning the personal information, investment objective and risk tolerance of the Customer, information related to the Customer’s qualification as Accredited Customer as defined by the Securities and Exchange Commission (the “SEC”), and notification of any financial change affecting their status as Accredited Customer.
2.2. Make any disclosure required under federal securities laws or other applicable laws, including the filing of any documents that such party reasonably determines are required by the SEC, provided, that the content of any document so filed does not violate any of the other terms and conditions of this Agreement unless such content constitutes disclosure required by any securities laws or rules or regulations promulgated from time to time by the SEC.
2.3. Thoroughly evaluate investment opportunities presented by Gernas, including associated risks and tax withholding consequences within the Customer’s country of citizenship and/or residency.
3. Rights and Obligations of Gernas. The following are the Rights and Obligations of Gernas under this Agreement:
3.1. Provide information to the Customer about investment opportunities including: (a) financial disclosures, (b) project related information, (c) information about the underlying issuing companies and (d) other relevant information for use by the Customer in evaluating and selecting investments.
3.2. Provide ongoing reports regarding the Customer’s investments throughout the term of each investment.
3.3. Disclose certain necessary information about the Customer’s identity in order to comply with applicable laws and statutes, where required. Such information may include but is not limited to the Customer’s name, address, government issued photo identification, and source of funds.
3.4. Engage in transactions with the target company or companies as necessary and integral to the maintenance of the investment(s) selected and undertaken by the Customer into the target company or companies, that will be subject to and in accordance with the corresponding Investment Agreement(s).
3.5. Act on behalf of the Customer to collect the outstanding principle amount upon maturity of the instruments, including in the event that an investment yields negative returns (“Collections”).
3.6. Provide other services to the Customer, as specifically agreed in the Agreement or its amendments.
4. Representation and Warranties of the Customer. To induce Gernas to accept this Agreement, the Customer hereby represents and warrants to Gernas as follows:
4.1. Knowledgeable and Experienced Investor. The Customer has such knowledge and experience in financial and business matters that the Customer is capable of evaluating the merits and risks of the investment evidenced by the Customer's purchase of the investments, and the Customer is able to bear the economic risk of such investment including the risk of complete loss.
4.2. Read and Understand Agreement. The Customer has received and carefully read and understands this Agreement. The Customer has been furnished all other materials relating to Gernas, if any, which have been requested. Furthermore, the Customer has been afforded an opportunity to ask questions of, and receive answers from, Gernas.
4.3. Non-Disclosure of Documents Provide by Gernas. The Customer hereby agrees not to distribute or reproduce the Agreement, including any exhibits or schedules thereto, without the prior written consent of Gernas; provided, however, that consent shall not be required in the event the distribution and reproduction of this Agreement is either for the Customer's internal review and discussion or for the services by the retained professionals (including without limitation, accountants, attorneys or financiers) of the Customer. The Customer further agrees that if the Customer no longer maintains an Active Status on the Platform or is rejected by Gernas, the Customer will promptly return to Gernas or destroy, in Gernas' discretion, the Agreement and any other documents given to the Customer.
4.4. Unregistered Securities. The Customer understands that neither the U.S. Securities and Exchange Commission nor any other federal, state or non-U.S. agency has recommended, approved or endorsed the purchase of the investments as an investment or passed on the accuracy or adequacy of the information set forth in the Agreement or any other documents used in connection with the investment. The Customer has relied on its own examination and the terms of the investment, including the merits and risks involved, legal and investment counsel to the extent deemed advisable by the Customer.
4.5. Acknowledges and Agrees to Risks. The Customer has obtained, in the judgment of the Customer, sufficient information to evaluate the merits and risks of an investment. The Customer has reviewed the Risk Factors set forth on Exhibit A attached hereto. The Customer has sufficient knowledge and experience in financial and business matters to evaluate the merits and risks associated with such investment and to make an informed investment decision with respect thereto.
4.6. Source of Funds. The Customer does not know or have any reason to suspect that (i) monies used to fund the Customer's investment in the investments have been or will be derived from or related to any illegal activities or (ii) the proceeds from the Customer's investment in the investments will be used to finance any illegal activities. The Customer is in compliance with all applicable anti-money laundering laws, regulations, rules and government guidance, including (if applicable to the Customer) the reporting, record-keeping and compliance requirements of the U.S. Bank Secrecy Act, the U.S. Money Laundering Control Act of 1986, the U.S. International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, or the Obstruct Terrorism Act of 2001 (the "PATRIOT Act") or any other anti-money laundering laws or regulations in other jurisdictions, in each case, such statute as amended to date and any successor statute thereto and including all regulations promulgated thereunder (collectively, "AML Laws").
4.7. Provide Additional Info. When requested by Gernas, the Customer will provide any and all additional information, and the Customer understands and agrees that Gernas may release confidential information about the Customer to any person, deemed reasonably necessary to ensure compliance with all applicable laws and regulations concerning money laundering and similar activities. Gernas reserves the right to request any information as is necessary to verify the identity of the Customer and the source of any payment that would be made. In the event of delay or failure by the Customer to produce any information required for verification purposes, the Customer may be refused use of the Platform.
4.8. Prohibited Customers. Except as otherwise disclosed in writing to Gernas, the Customer represents and warrants that neither he/she/it, nor any person controlled by, controlling or under common control of any financial account with the Customer, any person for whom the Customer is acting as agent or nominee in connection with this investment, nor if the Customer is an entity, any Related Person is:
(a) a Prohibited Customer; or
(b) a Senior Foreign Political Figure, any member of a Senior Foreign Political Figure's "immediate family," which includes such Senior Foreign Political Figure's parents, siblings, spouse, children and in-laws, or any Close Associate of a Senior Foreign Political Figure, or a person or entity resident in, or organized or chartered under, the laws of a Non-Cooperative Jurisdiction;
(i) a person resident in, or organized or chartered under, the laws of a jurisdiction that has been designated by the U.S. Secretary of the Treasury under Section 311 or 312 of the PATRIOT Act as warranting special measures due to money laundering concerns; or
(ii) a person who gives the Customer reason to believe that its funds originate from, or will be or have been routed through, an account maintained at a Foreign Shell Bank, an "offshore bank," or a bank organized or chartered under the laws of a Non-Cooperative Jurisdiction.
For purposes of this section (4.8), the capitalized terms will have the meanings defined in Terminology Regarding Prohibited Customers Exhibit B.
4.9. Read and Understand Exhibits to Agreement. The Customer has carefully reviewed and completed the Exhibits to this Agreement. The information that the Customer has provided to Gernas, including information provided via the Platform and the information contained in the Exhibits to this Agreement (collectively, the "Customer's Information"), is true, complete and correct.
5. Term and Termination of the Agreement. The Agreement is effective as of the date of its execution and shall remain in effect so long as the Customer either (a) maintains an active account on the Platform (“Active Status”) or (b) the Customer has one or more active Investment Agreements (“Active Agreements”). The Customer may elect to terminate their Active Status at any time, provided that they do not have Active Agreements, by notifying Gernas by any of the methods indicated on the Platform or by emailing such notice to email@example.com.
6. Service Fee. Gernas is entitled to earn a service fee of 20% of the Customer’s Gross Profits.
Gross Profits shall mean, with respect to any fiscal period, the excess of the aggregate revenue realized during such fiscal period by the investment from all sources whatsoever over the Realized Costs and Losses, and in the case of the sale or other taxable exchange of a capital asset, the excess of the amount realized by the investment on such sale or other taxable exchange over the cost thereof.
Realized Costs and Losses shall mean all losses and costs incurred during such fiscal period by the investment realized in the currency specified in the Financing Agreement or Agreements executed in connection with such investment (“Investment Currency”). Realized Costs and Losses shall exclude the following: (a) losses due to periodic changes in the exchange rate between the Investment Currency and any other currency, asset class, cryptocurrency, digital token, or any other such form of stored value being utilized by the Customer; (b) currency exchange costs, money transfer fees, and other such fees incurred by the Customer through the course the investment when converting to/from the Investment Currency; (c) any tax, tarif, lien, levy, fine, or other such fee that may imposed by any government or other civil administration with authority over the Customer’s jurisdiction of residency and/or citizenship; (d) any bank fees charged by the Customer’s own bank, including but not limited to international wire fees associated with sending/receiving funds through the course of the investment.
7. Power of Attorney.
7.1. The Customer hereby irrevocably appoints Gernas and each person serving from time to time as a member, manager or officer of Gernas (collectively, the "Attorneys-in-fact") as the Customer's agent and Attorney-in-fact, granting unto each Attorneys-in-fact full power of substitution and authority in the Customer's name, place and stead, to make, execute, acknowledge, deliver, swear to, file and record in all necessary or appropriate places: (i) all documents, certificates or instruments that Gernas deems necessary or appropriate to reflect any amendment or modification of the terms of the investment agreement approved in accordance with the terms of the investment agreement; and (ii) all documents, certificates or instruments required by law to be filed by Gernas or its partners under the laws of any country, territory, state or other jurisdiction, if Gernas deems such filing necessary or appropriate to comply with any applicable laws, rules or regulations to which the invested Gernas is subject.
7.2. The power of attorney granted under this Section 7 (the "Power of Attorney") is coupled with investments made in connection with this Agreement, is irrevocable, and shall survive the death, dissolution, incompetence or incapacity of the Customer or an assignment by the Customer of the investments, this Power of Attorney shall survive such assignment for the sole purpose of enabling Gernas to execute, acknowledge and file any certificate, instrument or document necessary or appropriate to effect such substitution.
7.3. The Customer hereby agrees to be bound by all of the representations of the Attorneys-in-fact and waives any and all defenses that may be available to the Customer to contest, negate or disaffirm the actions of the Attorneys-in-fact or their successors under this Power of Attorney, and hereby ratifies and confirms all acts that said Attorneys-in-fact may take as attorney-in-fact hereunder in all respects, as though performed by the Customer.
8. Non-Exclusivity of Platform.
8.1. Gernas, its principals, employees, and agents may have, recommend, or take the same or similar positions in specific investments for their own accounts, or for the accounts of other Customers or, as Gernas offers for the Customer.
8.2. Gernas shall be free to offer the Platform to others and does not make its exclusively to the Customer.
8.3. Gernas shall not be imposed upon any obligation to purchase or sell, or to recommend for purchase or sale, for the Customer, any security which Gernas, its principals, employees or agents may purchase or sell for their own accounts or for the account of another client.
9. Limit of Liability. Gernas shall not be liable for actions, omission, investment information, investment decision, or loss in connection with this Agreement, except provided otherwise by federal or state securities laws.
10. Risk Acknowledgement. The parties have reviewed and agreed upon the matters arranged within the Certain Risk Factors set forth on Exhibit A attached within this Agreement.
11. Death or Disability. Death, disability or incompetency of the Customer will not terminate or change the terms of the Agreement.
12.1. Dispute Resolution. In the event of dispute resolution through arbitration, each party will bear its own costs.
12.2. Collections. Costs related to collections will be considered as costs associated with the investment and will be charged against the recovered funds. In the case where Collections efforts recover less funds than the costs incurred of those efforts, Gernas will bear the costs in excess of the amount of funds recovered.
13. Modification and Intent. This Agreement shall not be changed, modified, terminated, or discharged in whole or in part, except by an instrument in writing signed by the parties or their respective successors.
14. Notices. Unless specified otherwise in the Agreement, all notices with respect to this Agreement shall be deemed duly given when received via email.
15. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be effective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms or provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
16. Force Majeure. The Parties shall not be responsible towards each other for any errors in performance or breach under this Agreement occurring solely by reason of circumstances beyond control of the Parties.
17. Assignment. The Customer may not assign his/her/its rights under this Agreement without prior written consent of Gernas, which consent may be withheld in its sole discretion. Gernas shall be permitted to assign its rights or obligations under this Agreement, but no such assignment shall release Gernas of any obligations pursuant to this Agreement.
18. Governing Law and Dispute Settlement.
18.1. This Agreement and implementation of it are in all respect governed by as well as interpreted and construed in accordance with the laws of the U.S. State of Delaware.
18.2. Any dispute arising out of or in connection with this Agreement shall to the extent possible be settled amicably by negotiation and discussion between the Parties.
18.3. Failing to each such an amicable settlement, any Dispute shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, and the SIAC Rules are deemed to be incorporated by reference in this clause; the award made by the arbitrators shall be final, binding; each Party shall bear all the costs and expenses incurred by such Party as a result of the arbitration procedure.
Certain Risk Factors
The Customer should be aware that this Agreement involves a high degree of risk. There can be no assurance that the objectives of the Customer will be achieved, or the Customer will receive a return of his/her/its capital. In addition, there will be occasions when Gernas and its affiliates may encounter potential conflicts of interest in connection with the investment. The following considerations, among others, should be carefully evaluated before entering the Agreement
- Risk Inherent In Microfinance Instruments. The types of investments listed on the Platform involve a high degree of risk. In general, financial and operating risks confronting portfolio investments can be significant. While targeted returns should reflect the perceived level of risk in any investment situation, there can be no assurance that the Customer will be adequately compensated for risks taken. A loss of the Customer's entire investment is possible. The timing of profit realization is highly uncertain. Losses are likely to occur early in the life of the Customer's investments, while successes often require a long maturation.
- International Tax Consequences. The Customer plans to invest solely in non-U.S. instruments. This investment, and the returns associated with it, may be subject to a variety of international tax consequences, including withholding or tax assessments in Indonesia, the United States, or the Customer’s country of residence.
- Changing Economic Conditions. The success of the Customer’s investment strategy could be significantly impacted by changing external economic conditions in the country of the target beneficiary and global economies. Changing economic conditions could potentially adversely impact the valuation of portfolio holdings.
- No Assurance Of Returns. There can be no assurance that the Customer will receive distributions from the investments in an amount equal to the Customer’s original principle investment. The timing of profit realization, if any, is highly uncertain.
- Reliance On the Target Companies. The target company or companies selected by Gernas will have sole discretion over the use of the funds committed to the Customer as well as the ultimate realization of any profits. As such, the pool of funds in the target company or companies represents a blind pool of funds. The Customer will be relying on the target company or companies to conduct the business as contemplated by the related Investment Agreement(s). There can be no assurance that the principals of the target company or companies will be able to duplicate prior levels of success.
- Limitations On Ability To Exit Investments. The Customer should expect to exit from its investments subject to the terms and conditions of the Investment Agreement(s) in which it invests.
- Absence Of Liquidity And Public Markets. The Customer's investments will generally be private, illiquid holdings. As such, there will be no public markets for the securities held by the Customer and no readily available liquidity mechanism at any particular time for any of the investments made on the Platform.
- No Market; Illiquidity Of Customer Investments. An investment by the Customer will be illiquid and involves a high degree of risk. There is no public market for investments made by the Customer, and it is not expected that a public market will develop. Consequently, the Customer will bear the economic risks of its investment for the term of the associated Investment Agreement.
- Certain Limitations On Ability Of Customer To Transfer Their Interests In The Target Companies. The transferability of investments will be restricted by United States federal and state securities laws. In general, the Customer will not be able to sell or transfer its interests to third parties without the consent of Gernas and the Target Company or Companies.
- Limited Portfolio Diversification. The sole investments of the Customer on the Platform shall be those investment opportunities presented on the Platform by Gernas.
- Legal, Tax And Regulatory Risks. Legal, tax and regulatory changes could occur during the term of the investment(s) that may adversely affect the Customer.
- Conflicts Of Interest. Instances may arise where the interest of Gernas (or its members) may potentially or actually conflict with the interests of the Customer.
- Limited Operating History. Gernas is an early stage cooperaetive and has limited operating history. The Customer's investment program should be evaluated on the basis that there can be no assurance that Gernas' assessment of the prospects of investments will prove accurate or that the Customer will achieve its investment objective. Past performance of the principals of Gernas is not necessarily indicative of future results.
- Legal And Regulatory Risks. Gernas is not and does not expect to be registered as an "investment company" under the Investment Company Act, pursuant to an exemption set forth in Sections 3(c)(1) and/or 3(c)(7) of the Investment Company Act. There is no assurance that such exemptions will continue to be available to Gernas. Due to the burdens of compliance with the Investment Company Act, the performance of the Customer's investment portfolio could be materially adversely affected, and risks involved in financing portfolio investments could substantially increase, if Gernas becomes subject to registration under the Investment Company Act. Neither Gernas nor its counsel can assure investors that, under certain conditions, changed circumstances, or changes in the law, Gernas may not become subject to the Investment Company Act or other burdensome regulation. In addition, neither Gernas nor its affiliates are, or are required to be, registered as an "investment adviser" under the Advisers Act. Neither Gernas nor the Customer's counsel can assure investors that, under certain conditions, changed circumstances, or changes in the law, Gernas may not become subject to the Advisers Act or other burdensome regulation. Due to the burdens of compliance with the Advisers Act, if Gernas becomes subject to registration under the Advisers Act, additional restrictions and limitations may be imposed on the operations of the Customer. In addition, Gernas does not plan to register the offering of the investments under the Securities Act. As a result, the Gernas will not be afforded the protections of such acts with respect to their investment in the target beneficiaries.
Terminology Regarding Prohibited Customers
"Prohibited Customer" shall mean a person or entity whose name appears on (i) the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (ii) other lists of prohibited Persons as may be mandated by applicable law or regulation; or (iii) such other lists of prohibited Persons as may be provided to the Fund in connection therewith.
"Senior Foreign Political Figure" shall mean a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. In addition, a Senior Foreign Political Figure includes any corporation, business or other entity that has been formed by, or for the benefit of, a Senior Foreign Political Figure.
"Close Associate of a Senior Foreign Political Figure" shall mean a person who is widely and publicly known internationally to maintain an unusually close relationship with the Senior Foreign Political Figure, and includes a Person who is in a position to conduct substantial domestic and international financial transactions on behalf of the Senior Foreign Political Figure.
"Non-Cooperative Jurisdiction" shall mean any foreign country that has been designated as non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Task Force on Money Laundering, of which the U.S. is a member and with which designation the U.S. representative to the group or organization continues to concur.
"Foreign Shell Bank" shall mean a Foreign Bank without a Physical Presence in any country, but does not include a Regulated Affiliate. A "Foreign Bank" shall mean an organization that (i) is organized under the laws of a foreign country, (ii) engages in the business of banking, (iii) is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or principal banking operations, (iv) receives deposits to a substantial extent in the regular course of its business, and (v) has the power to accept demand deposits, but does not include the U.S. branches or agencies of a foreign bank.
"Physical Presence" shall mean a place of business that is maintained by a Foreign Bank and is located at a fixed address, other than solely a post office box or an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, at which location the Foreign Bank (i) employs one or more individuals on a full-time basis, (ii) maintains operating records related to its banking activities, and (iii) is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities.
"Regulated Affiliate" shall mean a Foreign Shell Bank that is an affiliate of a depository institution, credit union or Foreign Bank that maintains a Physical Presence in the U.S. or a foreign country regulating such affiliated depository institution, credit union or Foreign Bank.