1.          Definitions and Interpretation

1.1       In these Terms:

(a)        Action means a legal proceeding, process or action involving the Action Parties for which litigation funding is or may be sought from Investors.

(b)        Action Parties means the persons or entities named in the IM as litigants.

(c)        Affiliate means an officer, employee or professional advisor of the Investor who has a legitimate need to access to the Confidential Information for the Purpose.

(d)        Claims means all claims, disputes, differences, allegations, complaints, demands, notices, suits, actions, proceedings, losses, expenses and liabilities of whatever nature and however arising, whether presently known or unknown, and whether past present or future, including without limitation, claims for interlocutory relief, costs, damages and interest.

(e)        Confidential Information means all or any information which is recorded, stored or comprised in an IM or a Document disclosed to the Investor or an Affiliate,  including the IM itself, and which relates in any way to the Action Parties or the Action.

(f)        Document includes any physical or digital document of any kind, including but not limited to a record, note, report, statement, memorandum, list, court document, advice, outline or schedule.

(g)        Fund means the fund managed by Hartwell to advance funding in pursuit of the Action.

(h)        Hartwell means Hartwell Funding Pty Ltd and all its subsidiaries and Related Entities.

(i)          IM means an information memorandum issued by Hartwell in relation to the Action.

(j)          Investor means you and any Related Entities through which you invest in the Fund.

(k)         Related Entities means, in relation to an Investor, the Investor’s related parties, related entities and related bodies corporate as those terms are defined in the Corporations Act 2001 (Cth).

(l)          Purpose means considering an investment in, or participating in, the Fund.

2.          Preliminary qualifications and disclosures

2.1        Prior to receiving an IM, the Investor must disclose to Hartwell full details of any current or historical relationship or dealings between the Investor and any Action Parties. The Investor warrants that all documents and disclosures given will be truthful, accurate and complete, and acknowledges and agrees that Hartwell is relying on the Investor’s warranty in this regard.

2.2        The obligations under this clause 2 are continuing and the Investor must promptly inform Hartwell of any fact, matter or circumstance occurring after disclosure is given that in any way affects the Investor’s disclosure.

2.3        Hartwell may, in its sole discretion, preclude any Investor from participating in the funding of the Action where it considers a matter disclosed by the Investor may prejudice, affect or impact the Action or Hartwell’s position, interests or reputation in any way.

3.          Permitted Use     

3.1        The Investor agrees and undertakes to Hartwell as follows:

(a)        to hold the Confidential Information in strict confidence;

(b)       not to disclose, share or forward the Confidential Information or any of it to any person, except as permitted under these Terms or with the prior written consent of Hartwell;

(c)        not to cause or permit the disclosure, sharing or forwarding of the Confidential Information or any of it to any person, except as permitted under these Terms;

(d)      not to make use of the Confidential Information to the commercial, financial or competitive disadvantage of Hartwell or for the benefit of any third party;  

(e)      to keep the Confidential Information secure and protected from any use, disclosure or access inconsistent with these Terms; and

(f)        to do anything reasonably required by Hartwell to restrain a breach of these Terms or any infringement of Hartwell’s rights arising out of these Terms by any person, whether by court proceedings or otherwise.

3.2       The Investor may disclose the Confidential Information to an Affiliate where the Affiliate undertakes in writing to only use the Confidential Information for the Purpose and comply strictly with these Terms. The Investor shall be liable to Hartwell for all acts or omission by or on behalf of its Affiliates in relation to its dealings or use of any Confidential Information.

3.3       The Investor acknowledges and agrees that any Confidential Information disclosed by Hartwell to the Investor before the date of these Terms shall be subject to the terms of these Terms as if it were disclosed to the Investor after the date of these Terms.

3.4       The Investor must, if requested by Hartwell, return to Hartwell, or destroy or delete as Hartwell directs, all Confidential Information and all original Documents and copies (including Documents created by the Investor) in the possession, custody or control of the Investor which contain Confidential Information, or which reproduce, utilise or relate to any Confidential Information.

3.5       The Investor acknowledges that these Terms does not convey or transfer any proprietary or other interest in the Confidential Information to the Investor or any Affiliate.

4.          Required disclosure                     

4.1       Despite any other provision in these Terms, an Investor or an Affiliate may make a disclosure of Confidential Information where:

(a)        required by law or Court order;

(b)        the information is in the public domain other than as a result of a breach of these Terms; or

(c)         the information is received by the Investor or an Affiliate from a party other than Hartwell who is legally entitled to possess that information.

4.2        If the Investor or an Affiliate must make a disclosure referred to in clause 4.1, the Investor must disclose, and must ensure that Affiliates disclose, only the minimum Confidential Information required to comply with the applicable law or order.  Before making any disclosure, the Investor must give Hartwell written notice of the circumstances of the required disclosure and the Confidential Information which it, or an Affiliate, proposes to disclose.

5.          Disclaimer                       

5.1        Hartwell gives no warranty or guarantee that any Confidential Information disclosed to the Investor is or will be truthful, accurate or complete, but will use reasonable endeavours to inform the Investor of any matter arising or coming to Hartwell’s notice which may affect or qualify any Confidential Information which Hartwell provides to the Investor.

6.          Indemnity

6.1        The Investor indemnifies Hartwell in relation to any Claims arising out of or in any way connected with a breach of any undertaking, obligation, term or warranty in these Terms, or and a breach of the same by any Affiliate of the Investor.

6.2        Where Hartwell considers an indemnity Claim under clause 6.1 exists in relation to an Investor, Hartwell may withhold, deduct or set off any entitlement the Investor may have to receive any monetary sum in relation to any Action (including investment, proceeds or other recovery) against the Claim.

7.          Nature of Terms                                                     

7.1        These Terms:

(a)        bind the Investor as a deed poll and are enforceable as against the Investor by Hartwell;

(b)        and the obligations under them continue in time from the date accepted by the Investor;

(c)        and the rights and obligations under them are personal and are incapable of assignment by the Investor;

(d)        cannot be amended, supplemented, discharged or abandoned by the Investor;

(e)        may be amended by Hartwell in its sole discretion, upon notice to the Investor.

7.2        To the extent there is any inconsistency between these Terms and any express term contained in an IM or other document (including terms required by an application form associated with investment in the Fund), these Terms shall prevail only to the extent of the inconsistency.

7.3        These Terms are governed by and must be construed in accordance with the laws of Western Australia.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Western Australia and all courts which have jurisdiction to hear appeals from those courts, and waives any right to object to proceedings being brought in those courts for any reason.

Version current as at 13 February 2024