Membership Agreement

Membership Services

Subject to payment of the Membership Fees and the Member’s and the Permitted Users’ compliance with the terms of this Membership Agreement, RAIN will provide the Membership Services (as defined below) during the Membership Period.

Membership Fees

1. Annual Membership Fees are payable in full in advance of the Membership Start Date.
2. RAIN will issue the Member with an invoice for the Annual Membership Fees.
3. RAIN reserves the right to delay the Membership Start Date until the relevant Annual Membership Fees have been received by RAIN in full and cleared funds.
4. The amounts payable under this Membership Agreement are exclusive of GST or other similar taxes, duties, charges or assessments, which will be added (if applicable) as required by applicable legislation.

Member Warranties and Agreements

The Member represents, warrants, understands and agrees that:

1. the Member has, and will have throughout the Membership Period, a then-current certificate from a qualified accountant (as defined under s88B of the Corporations Act 2001 (Cth)) certifying that the Member has the prescribed net asset or gross income level such that the Member meets all the requirements under the Corporations Act 2001 (Cth) to be considered a “Sophisticated Investor” or “Professional Investor” (an “SI Certificate”);
2. the Member has such knowledge and experience in financial and business matters to be capable of evaluating the relative merits and risks of any investment introduced by RAIN or presented to the Member in connection with the Membership Services;
3. the Member will provide a copy of the SI Certificate to RAIN immediately upon request;
4. the Member must and will conduct their own analysis and due diligence to determine the appropriateness of any investment (in any form, including debt and/or equity) the Member makes in any Company;
5. any meetings or forums organised by RAIN at which the Membership Services are provided do not constitute an offer to sell or solicitation to buy any security in any Company by RAIN, any Related Body Corporate of RAIN or any other entity;
6. RAIN is not a financial services business, financial adviser, investment adviser, venture fund, investment bank, broker, dealer or other financial services regulated entity and the provision of any Membership Services from RAIN should not be taken as and does not constitute, and neither RAIN nor any of its Related Body Corporates or representatives provide or offer any, financial services or any other professional advice or business, financial, investment, hedging, trading, legal, regulatory, tax or accounting advice or services, including any advice, recommendation or any other indication of appropriateness or inappropriateness for a particular or any investment, including in any Company;
7. the role and purpose of RAIN is to solely facilitate introductions for Members to Companies and not provide the Member or any third party with any advice of any nature whatsoever;
8. RAIN does not endorse any investment opportunity, including any investment opportunity arising from the provision of any RAIN Services, and RAIN makes no independent investigation to verify information provided by Companies submitting to RAIN for a presentation or otherwise, and makes no representation or warranty regarding the same;
9. the Member enters into any agreements with Companies, including those introduced to the Member via the Membership Services:
   1. entirely at its own risk; and
   2. with sole responsibility, as between the Member and RAIN, for conducting any legal, accounting or due diligence review and the provision of any and all professional advice;
10. RAIN does not provide financial product advice to Members or any third parties, deal in a financial product, make a market for a financial product, operate a registered managed investment scheme, provide a custodial or depository service or any trustee company services, provide a crowd funding service, provide a superannuation trustee service, provide a claims handling or settling service or operate the business or conduct the affairs of a corporate collective investment vehicle;
11. the Member will at all times comply with (and will procure that the Permitted Users comply with) the terms of this Agreement and RAIN’s Code of Conduct; and
12. RAIN may charge any fees to any Company or other person introduced to the Member in the course of RAIN providing Membership Services or any other services.

Member Licence and Proprietary Rights

1. In consideration of and subject to the Member’s payment of the Membership Fees, RAIN grants to the Member and the Permitted Users a non-exclusive, non-transferable licence to access and use the Membership Services and the Materials for the Membership Period strictly in accordance with and subject to the terms and conditions of this Membership Agreement (the “Licence”).
2. The Member acknowledges that all Intellectual Property Rights in and to the Membership Services and the Materials belong to RAIN, the relevant Company and/or any third-party licensors and neither the Member nor any Permitted User will acquire any rights in or to the Membership Services or the Materials other than the right to access/use them strictly in accordance with the terms of this Membership Agreement.

Limitation of Liability and Indemnities

The Member acknowledges and agrees that:

1. RAIN is not responsible or liable for and does not guarantee the accuracy of, the Membership Services and/or the Materials and any aspect or part thereof, which are provided strictly on an “as is” basis. RAIN accepts no liability for any loss, expense, claim or damage whatsoever sustained by the Member or any Permitted User or any Related Body Corporate of either as a result of or relating to using or relying on any aspect of the Membership Services or the Materials;
2. the choice by the Member to use the Materials and the manner of utilisation of those Materials and any other information and knowledge gained through RAIN or any Membership Services provided by RAIN is a personal choice of the Member for which it is entirely responsible;
3. the Membership Services and the Materials may include conjecture, prediction, opinion, assessment and/or analysis of subjective facts or circumstances, including by any Company or its advisors (together the “Analysis”), which may not always be correct and/or may change and the Member will not rely, and will ensure that no Permitted User will rely, on the Analysis and will draw its own conclusions regarding such Analysis using its own skill and judgement;
4. RAIN is not in any way liable or responsible for or in connection with any investment decision made by the Member or any associates or Affiliates of the Member (including any Related Body corporate as defined under the Corporations Act 2001 (Cth)), including in connection with the provision of debt or the purchase or acquisition of any equity or quasi-equity interest, including any investment in any Company;
5. subject to Clause 9, neither party will be liable to the other in contract, tort (including negligence and breach of statutory duty) misrepresentation or otherwise for any loss of revenue, profit, business opportunity or anticipated savings, or for any loss of goodwill or reputation, or for any indirect or consequential loss arising under or in relation to this Membership Agreement; and
6. notwithstanding Clause 9, to the maximum extent permitted by law, neither party will be liable to the other party under any cause of action in connection with this Agreement (including in negligence or other tort and including under any indemnity) for indirect, consequential, incidental or special damages, or any loss of profit or revenue, loss of contract, loss or damage of character, loss of opportunity, loss of customers or goodwill, loss or corruption of data, loss of use of data, or any special, indirect or consequential loss or damage, even if the possibility of that damage or loss has been notified to the party.

2. Nothing in this Membership Agreement will exclude or limit either party’s liability in respect of:
   1. fraud;
   2. payment of Membership Fees; or
   3. other matters for which liability cannot be lawfully excluded or limited.
3. Subject to Clause 12, each party (the “Indemnifying Party”) agrees to indemnify the other party (the Indemnified Party) from and against any and all expenses, costs, liabilities, losses or damages actually incurred by the Indemnified Party arising out of a breach by the Indemnifying Party of any of its representations, warranties, or undertakings contained in this Membership Agreement.
4. The Member is responsible for ensuring that its computer system meets all relevant technical specifications necessary to receive the Membership Services. RAIN does not guarantee that the Membership Services or the Materials will be free from viruses or other malicious code. The Member is responsible for implementing industry standard procedures and virus checks to maintain the security of its computer systems.
5. If RAIN is liable to the Member under this Membership Agreement for any reason, then (subject to Clause 9) RAIN’s liability will be limited to the amount of the annual Membership Fees paid by the Member in the preceding 12-month period.

Membership Credentials

1. The Member agrees that all Permitted User logins, passwords and other Permitted User identification (together “Membership Credentials”) used to access the Membership Services are confidential and personal to each Permitted User. The Member will ensure that Permitted Users do not disclose or transfer Membership Credentials to any person.
2. The Member must notify RAIN immediately of any unauthorised use of any Membership Credentials or any other breaches of security regarding the Membership Services that come to the Member’s attention.
3. Without prejudice to any other right or remedy, RAIN may disable any Membership Credentials at any time if in RAIN’s opinion the Member or a Permitted User has failed to comply with Clauses 13 and/or 14.
4. RAIN reserves the right to temporarily suspend the Membership Services (whether in whole or in part) for the purposes of maintenance or upgrade, but RAIN will use reasonable endeavours to carry out such maintenance/upgrade during periods of low demand for access and to minimise the period of such maintenance/upgrade.

Permitted Use and Restrictions

1. The Permitted Users may, strictly and solely for their/the Member’s internal business purposes:
   1. access and use the Membership Services;
   2. access the Materials via the Website; and
   3. download, print and/or store copies of certain Materials.
2. The Member and its Permitted Users may use Materials downloaded in accordance with Clause 17 solely for internal business reports circulated to the Member’s employees or officers and only for the purposes of the Member assessing a potential contractual or financial relationship with a Company or any Related Body Corporate of a Company.
3. The Member warrants and represents that it will not (and will procure the Permitted Users will not):
   1. download, store, reproduce, transmit, display, copy, distribute, commercially exploit or use the Membership Services and/or the Materials except as expressly permitted in this Membership Agreement;
   2. use the Membership Services and/or the Materials (and/or any information contained within the Membership Services or the Materials) for any external purpose whatsoever;
   3. resell, sub-license, rent, lease, transfer or attempt to assign any rights in the Membership Services and/or the Materials (in whole or in part) to any other person;
   4. modify or alter the Membership Services and/or the Materials;
   5. allow any person other than the Permitted Users to use or gain access to the Membership Services or the Materials except as expressly permitted in this Membership Agreement; and
   6. change or substitute a Permitted User without RAIN’s prior written consent (not to be unreasonably withheld).

Notification of Investments

The Member will inform RAIN in writing:

1. on each occasion it or any Related Body Corporation or Affiliate has reached agreement with one or more Companies in relation to any Investment (the ‘Investment Agreement’);
2. the amount of the funds to be provided by the Member or any Related Body Corporation or Affiliate pursuant to any Investment Agreements, the type of the Investment and other terms relating to the Investment;
3. whether the Investment is an Initial Fund Raise or Second or Subsequent Fund Raise; and
4. the date or dates on which any monies will be paid by the Member or any Related Body Corporation or Affiliate in connection with the Investment,

in each case within seven (7) days of signing or agreeing to the terms of the Investment Agreement (including any term sheet, memorandum of understanding or formal long form agreements and including any subscription agreements, shareholder agreements or other forms of agreements evidencing the Investment).

2. For the avoidance of doubt, the information to be provided pursuant to Clause 20 is solely to enable RAIN to properly assess the obligations of the Company to RAIN and is provided for no other purpose.
3. The Member will provide RAIN with the notice set out in Clause 20 on each and every occasion an Investment Agreement is signed or agreed and on each occasion an Investment from the Member occurs during and after the Membership Period.
4. The Member agrees that RAIN may publicise in any media and on any platform and may publish on the Website or other platform, in each case information on the total investments made by RAIN members (including the Member) in Companies via RAIN, including any Investment, provided that information relating specifically to any Investment made with respect to the Member will not be made publicly available by RAIN unless and until the completion of the Investment (and in each case subject to applicable laws and ASX listing rules).

Privacy

1. To the extent that a party is bound by the Privacy Act 1988 (Cth) or any other applicable privacy laws or codes, it will comply with those laws and codes when accessing, collecting, storing, using or otherwise handling ‘Personal Information’ (as defined in the Privacy Act 1988 (Cth) in connection with this Agreement. Without limitation to the Members obligations under this Clause 24, the Member will ensure that it has all necessary consents from individuals for their Personal Information to be provided to RAIN for the purpose of RAIN providing any of the Services.
2. Each party will immediately inform the other of any suspected or actual data or privacy breaches or intrusions of any nature (including unauthorized disclosure of Personal Information) that might impact the other party and each party will fully co-operate with the other in the mitigation, management and disclosure of any such breach or intrusion.

Termination

1. Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Membership Agreement immediately on giving written notice to the other party:
   1. if the other party (or, where the other party is the Member, any of the Permitted Users) commits a breach of any of the material terms of this Membership Agreement that is not capable of remedy;
   2. if the other party (or, where the other party is the Member, any of the Permitted Users) commits a breach of any of the material terms of this Membership Agreement capable of remedy and fails to remedy that breach within two (2) days of being notified in writing of the breach; or
   3. subject to applicable laws, if the other party goes into liquidation (whether compulsory or voluntary) otherwise than for the purposes of a bona fide amalgamation or reconstruction, or an administrator or receiver or similar officer is appointed over the whole or any part of the other party’s assets, or the other party enters into any arrangement for the benefit of or compounds with its creditors generally, or threatens to do any of these things, or any judgment is made against the other party, or any similar occurrence under any jurisdiction affects the other party, or the other party ceases or threatens to cease to carry on business.
2. In addition, RAIN may immediately terminate this Membership Agreement on written notice to the Member:
   1. if the Member is or becomes a competitor of RAIN; or
   2. if the Member is in breach of any of Clauses 5, 13, 15, 19 or 20.
3. Without prejudice to any other rights or remedies under this Membership Agreement, RAIN is entitled to immediately suspend the Permitted Users’ access to any or all of the Membership Services, without prior notice, in the event that RAIN reasonably believes the Member and/or any Permitted User is in breach of any term of this Membership Agreement.

neither party will be in breach of this Membership Agreement nor bear any responsibility or liability for any losses arising out of any delay or failure in the performance of its obligations under this Membership Agreement due to events beyond its reasonable control commonly referred to as events of force majeure PROVIDED THAT the defaulting party will promptly notify the other party of the nature and reasons for the delay or failure and will use its reasonable endeavours to mitigate the effects of any default as soon as possible. If any such force majeure event continues for a period of more than one month either party may terminate this Membership Agreement by written notice to the other party without prejudice to the rights of the parties existing prior to such termination.

Consequences of Termination/Expiry

1. Upon expiry of the Membership Term or earlier termination of this Membership Agreement:
   1. the Licence and all the Member’s and the Permitted Users’ other rights under this Membership Agreement will immediately cease;
   2. the Member will ensure that all Permitted Users immediately cease using the Membership Credentials; and
   3. unless the Member has terminated this Membership Agreement due to RAIN’s uncured material breach, RAIN will not be required to refund any Membership Fees received from the Member.
2. Termination or expiry of this Membership Agreement will not operate as a waiver of any breach by either party of any of the provisions hereof and will be without prejudice to any rights or remedies of either party which arise as a consequence of such breach or which have accrued under this Membership Agreement up to the date of such termination.
3. Clauses 1, 5, 7, 8, 9, 10, 11, 12, 19, 20, 22 31, 33, 34 and 35 will continue in force and effect notwithstanding the termination or expiry of this Membership Agreement, together with such other Clauses as are necessary for the interpretation or enforcement of this Membership Agreement.

Definitions and Interpretation

1. Definitions – in this Membership Agreement the following capitalised words and expressions have the following meanings:
   1. Affiliate means any director, officer, employee, legal or beneficial shareholder or legal or beneficial unit holder of the Member, RAIN or a Company (as the context requires) or any of its Related Body Corporates or any Related Body Corporate of any of the foregoing.
   2.  
   3. Code of Conduct means the RAIN Code of Conduct as determined by RAIN from time to time, a current copy of which is set out in the Schedule to this Membership Agreement.
   4. Company means any start-up or other company, venture or individual to which the Member is introduced through RAIN or presented to the Member in connection with or pursuant to the provision of the Membership Services.
   5. Initial Fund Raise means the first occasion (only) in which the Member or any Related body Corporate or Affiliate of the Member purchases any equity or debt or any other security or analogous instrument (including any preferred or convertible debt or equity, options, etc.) in the Company or any Affiliate or Related Body Corporate of the Company or invests any funds into the Company or any Affiliate or Related Body Corporate of the Company, including by way of purchasing or being issued shares or other equity or debt or any other security or analogous instrument (including any preferred or convertible debt or equity, options, etc.) in the Company or any Related Body Corporate or Affiliate of the Company.
   6. Intellectual Property Rights means all patents, unpatented inventions, registered and unregistered designs and design rights, copyrights (including rights in computer software), database rights, topography rights, domain names, trademarks, rights in trade dress and get-up, rights in goodwill or to sue for passing off, service marks, trade names, logos, rights in trade secrets, know-how (including applications or the right to apply for registration of all of the foregoing) and all other intellectual property rights of any nature whatsoever and all rights of a similar nature or having similar effect throughout the world whether registered or unregistered and whether now existing or in the future created including all applications and rights to apply for, and be granted renewals or extensions of, and rights to claim priority from, such rights.
   7. Investment means any Initial Fund Raise or Second or Subsequent Fund Raise.
   8. Materials means any and all documents, reports, spreadsheets, data, information and/or other materials made available via or by means of the Membership Services, including any information or materials (including financial results, business decks, etc.) relating to any company or venture the Member might invest in after being introduced to that potential investment via the Membership Services.
   9. Membership Agreement means this agreement which consists of these Standard Terms and Conditions, the Code of Conduct and the Membership Form.
   10. Membership Fees means the annual membership fees specified in the Membership Form, unless varied in accordance with this Agreement.
   11. Membership Form means the RAIN Membership Form completed on-line by the Member.
   12. Membership Period means the period specified in the Membership Form during which the Membership Services will be made available to the Member and its Permitted Users.
   13. Membership Services means the Website and the Services.
   14. Membership Start Date means the date on which the Services start, as specified in the Membership Form and unless varied in accordance with this Agreement.
   15. Permitted Users means those individuals nominated by the Member in writing to RAIN to access the Membership Services under this Membership Agreement, who (a) will at all times be the Member’s employees or officers, and (b) may not exceed the number of users set out in the Membership Form (if any).
   16. Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
   17. Second or Subsequent Fund Raise means each occasion in which the Member or any Related Body Corporate or Affiliate of the Company purchases any equity or debt or any other security or analogous instrument (including any preferred or convertible debt or equity, options, etc.) in a Company or any Affiliate or Related Body Corporate of a Company or invests any funds into a Company or any Affiliate or Related Body Corporate of the Company, including by way of purchasing or being issued shares or other equity or debt or any other security or analogous instrument (including any preferred or convertible debt or equity, options, etc.) in the Company or any Related Body Corporate or Affiliate of the Company, other than pursuant to an Initial Fund Raise.
   18. Service means the service provided by RAIN of facilitating the introduction between regionally based entrepreneurs engaged in companies or ventures typically in an early stage of development and potential investors who are Members, in each case through meetings, presentations and other processes organised by RAIN.
   19. Website means the RAIN website.
2. Interpretation – in this Membership Agreement any references, express or implied, to statutes or provisions are references to those statutes or provisions as amended or re-enacted from time to time. References to Clauses are to clauses in these Standard Terms and Conditions. The terms include and including will be construed as illustrative, without limiting the sense or scope of the words preceding them. A reference to in writing or written includes email. References to a person include natural persons, companies, partnerships and any other organisations (whether or not in each case having separate legal personality).

Miscellaneous

The parties agree that:

1. each party undertakes to the other that it will treat as confidential the terms of this Membership Agreement together with all information whether of a technical nature or otherwise relating in any manner to the business or affairs of the other party and any third party described in any Materials, save only information which (a) is or becomes available to the public other than as a result of a breach of this Clause or (b) is or becomes available to the receiving party from other sources free of restriction as to its use or disclosure;
2. this Membership Agreement contains the entire understanding and agreement of the parties relating to its subject matter and supersedes in all respects any previous or other existing arrangements, agreements or understandings between the parties whether oral or written in relation to its subject matter;
3. in entering into this Membership Agreement it does not rely on, and irrevocably waives any right it has or may have in respect of, any representation which is not expressly set out in this Membership Agreement, and each party irrevocably and unconditionally waives any right or remedy it has or may have to rescind this Membership Agreement or to claim damages for any misrepresentation not contained in this Membership Agreement, provided that nothing in this Membership Agreement will limit or exclude any liability for fraud. Each party agrees that the only remedy available to it for breach of this Membership Agreement will be for breach of contract and no party will be liable in tort or otherwise in respect of such breach;
4. this Membership Agreement is personal to the parties hereto and neither party will, without the prior consent in writing of the others (not to be unreasonably withheld, delayed or conditioned), assign, sub-license, charge, transfer or otherwise deal with the whole or any part of this Membership Agreement or its rights or obligations in this Membership Agreement or purport to do the same, provided that the consent of the Member is not required for any assignment or novation by RAIN of this Agreement or any rights or obligations under this Agreement to any Related Body Corporate of RAIN;
5. no variation or agreed termination of this Membership Agreement will be effective unless made in writing and signed by or on behalf of each of the parties;
6. in the event that any provision or part of a provision of this Membership Agreement is, or is held to be, illegal, invalid, unenforceable or against public policy pursuant to a final adjudication by a court of competent jurisdiction, that provision (or part thereof) will be severed from this Membership Agreement and the remainder of this Membership Agreement will be deemed in full force and effect;
7. no failure or delay by either party in exercising any right or remedy under this Membership Agreement will operate as a waiver of that right or remedy, and no single or partial exercise by either party of any right or remedy will preclude any further exercise of that right or remedy or the exercise of any other right or remedy. No waiver or discharge of any breach will be effective unless made in writing and signed by the party giving the waiver.  The rights and remedies provided in this Membership Agreement are cumulative and are not exclusive of any rights and remedies provided in law or otherwise;
8. at its own expense each party will execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Membership Agreement and the rights expressed to be granted under this Membership Agreement;
9. nothing in this Membership Agreement creates or will be deemed to have created a partnership or a joint venture or an agency agreement between the parties. Neither party will do anything to bind the other to any contract or to pledge the credit of the other party or to bind it to any obligation, commitment or liability, nor will represent itself as able to do so;
10. a person who is not a party to this Membership Agreement will have no rights to rely upon or enforce any term of this Membership Agreement;
11. any notices sent under this Membership Agreement must be in writing and may be served by personal delivery or by sending the notice by special delivery at the address given in the Membership Form or at such other address as the relevant party may give and every such notice will be deemed to have been served upon delivery if served by hand or at the expiration of two days after despatch of the same if delivered by special delivery; and
12. this Membership Agreement, and any dispute or claim arising out of or in connection with it or its subject matter, is governed by and will be construed in accordance with the laws of the State of Victoria, Australia. The parties irrevocably agree that the courts of the State of Victoria, Australia will have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Membership Agreement or its subject matter.