TERMS AND CONDITIONS (ISSUER & INVESTOR)

  1. These pitchIN ECF Terms ("Terms") shall apply to each Issuer and Investor, and where applicable, shall also apply to the User.
  2. By accessing, using, or continuing to access and use the Platform, or using the services provided via the Platform, each Issuer, Investor and User confirm that they have read, understood and agreed to these Terms, any other terms and conditions of the Platform and privacy policy on the Platform (each as may be varied, amended or supplemented from time to time).
  3. The Issuer, the Investor and the User (as the case may be) shall stop using the Platform immediately in the event any of them do not agree with these Terms, any other terms and conditions of the Platform and privacy policy.

Please read these Terms carefully and print a copy for your future reference.

DEFINITION AND INTERPRETATION

Unless the context otherwise requires, the following words shall have the following meanings assigned to it:

"Agreed Oversubscription Amount"
means the Oversubscription Amount as agreed between the ECF Operator and the Issuer, and as set out in the Offer Documents;
"Application"
means the application made to the ECF Operator by an applicant to become an Issuer by filling (a) the relevant application forms which can be found at the Platform; and (b) such other forms as may be required by the ECF Operator;
"Authorised Representative"
means a person authorised to act on behalf of the Issuer, including the directors and senior management of the Issuer;
"Business Days"
means a day (excluding Saturdays, Sundays and public holidays) on which banks are open in Kuala Lumpur for the transaction of normal banking business;
"Cooling-Off Period"
means a period of six (6) Business Days after the close of the Offer Period in accordance with Clause 10.2;
"ECF Funds"
in respect of a particular Hosting, means the funds raised from the Investors via the Platform;
"ECF Operator"
means Pitch Platforms Sdn. Bhd. (Company No. 1158464-T), being the owner and operator of the Platform;
"Guidelines"
means the Guidelines on Recognised Markets issued by the SC (SC-GL/6-2015), as may be amended from time to time, and include such other guidelines, orders, directives, by-laws, regulations and policies as may be issued from time to time by the relevant authority in respect of equity crowdfunding in Malaysia;
"Investor"
means a person who invests in any Hosting on the Platform;
"Issuer"
means a person who has been approved by the ECF Operator to be Hosted on the Platform as an Issuer;
"Hosting"
in respect of a particular Hosting, means the offer of the share capital of an Issuer on the Platform for subscription by Investors;
"Offer Documents"
means the documents prepared by the Issuer setting out the relevant information of the Hosting to be circulated on the Platform and to the potential Investors;
"Offer Period"
in respect of a particular Hosting, means the period during which the Investors may pay the ECF Funds into the Trust Account;
"Oversubscription"
means an event where the Trust Fund is in excess of the Targeted Amount;
"Oversubscription Amount"
means the amount exceeding the Targeted Amount as a result of Oversubscription;
"Platform"
means the pitchIN Equity Crowdfunding Platform at www.equity.pitchin.my and any subdomain thereof operated by the ECF Operator;
"Proposal"
means the proposal of the Issuer for a Hosting;
"Review"
means the review of the Proposal carried out by the ECF Operator in accordance with its internal guidelines and policies (as may be varied, amended or supplemented from time to time);
"SC"
means the Securities Commission of Malaysia;
"Targeted Amount"
in respect of a particular Hosting, means the total amount sought to be raised by an Issuer, and in case of Oversubscription, include the Agreed Oversubscription Amount (as the case may be);
"Trust Account"
in respect of a particular Hosting, means the designated bank account in which the Trust Fund is held during the Offer Period;
"Trust Fund"
means the ECF Funds deposited in the Trust Account;
"Trustee"
means the trustee appointed by the ECF Operator to hold the Trust Fund on trust for the relevant person; and
"User"
means any person who browses, visits, access and/or uses the Platform, whether active, semi-active or inactive user, and includes the Issuer and the Investor, and “Users” means any two or more of them.

Any reference to a statutory provision shall include such provision and any regulations made in pursuance thereof as from time to time modified, amended, replaced or reenacted whether before, on or after the date of these Terms. Any reference to any "law" shall include common law applicable in Malaysia and the provisions of statutes, regulations, orders and other subsidiary legislation issued pursuant to such statute, as well as directions, guidelines and circulars issued by any regulatory authority pursuant to any authority granted by any such statute.

Unless the context otherwise requires or permits, references to the singular number shall include references to the plural and vice versa, references to a particular gender shall include all genders, and references to natural persons shall include bodies corporate and vice versa.

Any reference to a "day", "week", "month" or "year" is to that day, week, month or year in accordance with the Gregorian calendar.

The headings are inserted for convenience only and shall not affect the construction of these Terms and Conditions.

The expression "ECF Operator" and "User" shall, where the context permits, include their respective successors, personal representatives and permitted assigns.

Where a word or phrase is given a defined meaning in these Terms and Conditions, any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning.

Any reference to "these Terms" is a reference to these pitchIN ECF Terms and any written amendments, supplementals or novations of these Terms from time to time, and includes a reference to any document which amends, waives, is supplemental to or novates the terms of these Terms.

Any reference to "writing", or cognate expressions, includes any communication effected via the Platform, electronic mail, telex, cable, facsimile transmission or other comparable means but shall not include short messaging services, instant messaging services or internet chat.

Any reference to "person" includes individual, partnership, association, company or corporation.

If any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day which is not a Business Day, then that period is to be deemed to only expire on the next Business Day.

No rule of construction applies to the disadvantage of a party because the party was responsible for the preparation of these Terms and Conditions or any part of it.

All transactions and payments must be completed and cleared or received during the normal business hours of the ECF Operator (09.00 to 16.00 local time in Kuala Lumpur). Where a transaction is not confirmed before the close of business hours on one Business Day then that transaction will be confirmed and deemed to have become final and binding at the opening of business hours on the next Business Days.

CONDITIONS PRECEDENT

Before a person may carry out a Hosting, the person shall first apply to the ECF Operator to become an Issuer, and thereafter shall submit its Proposal to the ECF Operator for its Review. The ECF Operator reserves the right at its sole discretion, at any time, to prevent, stop, withdraw and/or reject the Application and/or Proposal of any person without assigning any reason whatsoever.

The ECF Operator uses its own internal guidelines and policies when assessing the Applications and Proposal of any person and has absolute discretion as to (a) whether an applicant may become an Issuer; and (b) whether an Issuer may carry out the Hosting.

APPLICATION AS AN ISSUER

To become an Issuer, the applicant shall fulfil the following criteria:

  1. it shall be a private company (other than exempt private company) or limited liability partnership incorporated in Malaysia.
    1. The following entities are prohibited from raising funds through this platform
    2. Commercially or financially complex structures (i.e. investment fund companies) or financial institutions);
    3. Public-listed companies and their subsidiaries;
    4. Companies with no specific business plan or its business plan is to merge or acquire an unidentified entity (i.e. blind pool);
    5. Companies other than a microfund that propose to use the funds raised to provide loans or make investment in other entities;
    6. Companies other than a microfund with paid-up share capital exceeding RM10 million; and
    7. any other type of entity that is specified by the SC.

it shall have a valid and operating bank account in Malaysia with a financial institution licensed under the Financial Services Act 2013 or Islamic Financial Services Act 2013;

it shall complete the Application in a manner which is satisfactory to the ECF Operator (as the ECF Operator may in its absolute discretion determine);

it shall provide the ECF Operator with such information and documents listed in the Application; and

it shall provide the ECF Operator with such further information and/or documents as the ECF Operator in its absolute discretion considers necessary.

The applicant hereby agrees to allow the ECF Operator to carry out any identity, credit and fraud checks on the applicant and where appropriate its officers, directors, employees and representatives (including but not limited to the Authorised Representatives). The ECF Operator may engage the service of any third party service providers to conduct such checks. When requested by the ECF Operator, the applicant and its officers, directors, employees and representatives (including but not limited to the Authorised Representatives) shall promptly submit their identity documents, bank details and any other information and/or documents that the ECF Operator may reasonably request in order to assess the Application.

In the event the information and/or documents supplied to the ECF Operator are insufficient or are not supplied to the satisfaction of the ECF Operator to confirm the identity of the relevant persons and relevant checks are unable to be conducted to the satisfaction of the ECF Operator, the ECF Operator shall have the indisputable right not to approve the Application and/or not to permit the Issuer to carry out the Hosting.

The applicant may be approved as an Issuer upon notified by the ECF Operator in writing if the applicant successfully fulfils Clause 3 and passes the requirements and checks detailed in Clause 3 f).

Upon approval as an Issuer, the Issuer shall sign up on the Platform with a username and email address, enter a secure password and fulfil such other security processes as may be required on the Platform in order to log into the Platform. The login details are personal to the Issuer and are not transferable. The Issuer shall not seek a Hosting of its shares with another recognised Market operator (Equity crowdfunding platform) until the expiry of a period of six (6) months from the date of the equity crowdfunding agreement executed by the Issuer or until the Hosting is terminated by either party, whichever is later.

Each Issuer shall ensure that only the Issuer and its Authorised Representatives shall have access to the Platform by using the Issuer’s login details. Any login to the Platform by using the Issuer’s login details shall be deemed to have been made by the Issuer. The Issuer shall not and shall ensure that its Authorised Representatives do not misuse its login details and the Platform to the detriment of the ECF Operator and the Platform. The Issuer shall be responsible for all information and activities carried out on the Platform by anyone using the Issuer’s login details. The Issuer shall immediately notify the ECF Operator in writing of any breach of security, loss, theft or unauthorised use of the login details of the Issuer.

The Issuer and its Authorised Representatives shall only use and access the Platform for the purposes contemplated by these Terms and for no other purposes, and they hereby agree not to adapt or circumvent the systems in place in connection with the Platform, nor access the Platform for any unauthorised, malicious, illegal or fraudulent purpose. The ECF Operator reserves the right at its sole discretion not to act on any instructions received from the Issuer where the ECF Operator in its reasonable opinion, suspects any unauthorised, malicious, illegal or fraudulent activity.

The ECF Operator reserves the right at its sole discretion, at any time and from time to time, to prevent, stop and/or disallow by any means, any Issuer to continue using the Platform without assigning any reason whatsoever, and/or to revoke the registration status and deactivate the account of the Issuer from the Platform.

The revocation of the status of the Issuer under these Terms shall not result in a termination of any contract or other agreement to which the Issuer is a party at that time.

APPROVAL FOR HOSTING

Before an Issuer may carry out a Hosting, the Issuer shall submit the Proposal, together with such other information and documents as may be requested by the ECF Operator, to the ECF Operator in a form and manner as may be requested by the ECF Operator, for its Review.

The Review merely consists of the ECF Operator reviewing the information and documents supplied to ascertain whether the Proposal may be of interest to the Investors. For the avoidance of doubt, the Review does not consist of a verification of the information and documents supplied nor does it consist of a confirmation (a) of the feasibility of the Proposal; (b) the success of the Hosting; and (c) that the Proposal or the contents in respect thereof are compliant with all applicable laws and regulations.

Prior to each Hosting, the Issuer shall inform all of the Issuer’s current shareholders of the Proposal in accordance with the Issuer’s current Articles of Association and any relevant agreement(s) between the Issuer and its shareholders, and ensure that all and any necessary approvals and/or consents for the Hosting are obtained and provided to the ECF Operator immediately upon request (including where applicable, any waivers of pre-emption rights).

THE PROPOSAL

The Issuer shall ensure that the Proposal contains all information and documents which may be relevant to an Investor to make an informed decision to invest on the Hosting.

Subject to the Guidelines (as may be varied, amended or supplemented from time to time), the Issuer shall submit the relevant information and documents to the ECF Operator for the purpose of the Review, including but not limited to the following:

  1. information that explains the key characteristics of the Issuer;
  2. information that explains the purpose of the Hosting and the Targeted Amount;
  3. information relating to the business plan of the Issuer; and
    1. financial information relating to the Issuer as follows:
      1. for Targeted Amount below RM500,000:
      2. audited financial statements of the company, where applicable (e.g. where the issuer has been established for at least 12 months); and
      3. where audited financial statements are unavailable (e.g. the issuer is newly established), certified financial statements or information by the issuer’s management;
    2. for Targeted Amount above RM500,000: audited financial statements of the Issuer.

Upon completion of the Review, the ECF Operator may, in its sole absolute discretion, approve or reject the Proposal:

in the event the Proposal shall be rejected, the Issuer shall not conduct the Hosting, and the ECF Operator shall have the right to revoke the registration status of the Issuer and/or to deactivate the account of the Issuer from the Platform, and the Issuer may submit a fresh Application and fresh Proposal; and

in the event the Proposal shall be approved, the Issuer shall proceed with the Hosting in accordance with the terms of approval of the ECF Operator (including but not limited to adopting the shareholders agreement, nominee structure and other documents provided by the ECF Operator) by issuing the Offer Documents. For the avoidance of doubt, the ECF Operator shall be entitled to impose terms and conditions on the approval of the Proposal. When requested by the ECF Operator from time to time, the Issuer shall promptly make such adjustments, amendments, variations, modifications or supplements to the Offer Documents.

  1. The Issuer and its Authorised Representatives agree that they alone shall bear all responsibility for the content of the Proposal and the Offer Documents and each of the Issuer and its Authorised Representatives shall, jointly and severally, indemnify the ECF Operator against all claims, liabilities, demands, penalties, costs, expenses, damages and losses of whatsoever nature (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by, arising out of or in connection with the Proposal and the Offer Documents (and the contents thereof)).
  2. The Issuer hereby represents and warrants in respect of the Proposal and Offer Documents as follows:
    1. any information and documents provided by the Issuer on the Platform and to the ECF Operator are true, accurate, complete, current and not misleading and does not contain any material omission; and
      1. the Issuer shall be personally responsible for the contents of the Proposal and Offer Documents, and shall ensure that such contents:
        1. is true, accurate, current and not misleading;
        2. shall not infringe the intellectual property rights of any person, and shall not infringe the privacy of any person;
        3. shall not cause any damage to any person, and shall not contain any defamatory remarks;
        4. shall not violate any law, rules, regulations, by-laws, guidelines, order of any authority;
        5. shall not contain any pornographic or obscene materials; and
        6. shall not contain any computer viruses and/or computer programming routines that may damage, interfere with, intercept and/or expropriate any system or data;
  3. The Issuer hereby assign absolutely to the ECF Operator all title, benefits and interest relating to copyright on the contents published on the Platform in respect of the Hosting, including but not limited to texts, graphics, drawings, layouts and photographs and the ECF Operator may reproduce whether in whole and in part such content.
  4. The Issuer acknowledges that if the ECF Operator approves the Proposal, the ECF Operator may include in the Proposal and the Offer Documents such information as the ECF Operator may in its absolute discretion deem appropriate including (without limitation) a disclaimer of its liability and a risk warning to Investors.
  5. The Issuer acknowledges that the Proposal and/or Offer Documents will be reviewed by potential Investors and that whilst the ECF Operator attempts to impose duties of confidentiality on such persons, the ECF Operator cannot guarantee that the information contained in the Proposal and/or Offer Documents will remain confidential. The ECF Operator accepts no responsibility for any such information coming into the public domain by reason of the acts of third parties, potential Investors or otherwise save for where this occurs by reason of the negligence, fraud or breach of these Terms by the ECF Operator.
  6. Where there are any changes to the information contained in the Proposal and/or the Offer Documents, the Issuer shall inform the ECF Operator of this fact immediately in writing.

CAMPAIGN

Upon approval by the ECF Operator, the Issuer may proceed to Hosting.

The Issuer may run any campaign in respect of the Hosting to attract Investors, provided that the Issuer shall obtain the ECF Operator’s prior approval in writing in respect of each campaign (whether or not to be run on the Platform) before running it. The ECF Operator reserves the right to approve or reject any campaign in its absolute discretion. When requested, the Issuer shall vary, amend and/or supplement the campaign materials in accordance with the recommendations of the ECF Operator.

The Issuer shall link any campaign run outside the Platform to the ECF Operator and the Platform.

In addition to the above, potential Investors may post questions to the Issuers on the Platform. The Issuers shall answer such questions with answers that shall be true, accurate, complete, current, not misleading and do not contain any material omission, and if required by the ECF Operator, to provide supporting evidence for such answers.

REGISTRATION AS INVESTORS

The portions of the Platform that relate to the viewing of Hostings or to making investments on the Issuers are available only to certain qualified, registered and authorised Users of the Platform, who are registered as Investors..

Pursuant to the Guidelines, Investors shall be categorised into 3 categories:

  1. Sophisticated Investors;
  2. Angel Investors; and
  3. Retail Investors.

Sophisticated Investors are individuals (a) whose total net personal assets or total net joint assets with his or her spouse exceed RM3 million or its equivalent in foreign currencies; (b) who has a gross annual income exceeding RM300,000 or its equivalent in foreign currencies in the preceding 12 months; or (c) who, jointly with his or her spouse, has a gross annual income exceeding RM400,000 or its equivalent in foreign currencies in the preceding 12 months, or a corporation or partnership with total net assets exceeding RM10 million or its equivalent in foreign currencies, based on the last audited accounts (applicable only to corporation).

Angel Investors refers to individuals with an income of RM180,000 per annum or above (RM15,000 per month or above) or an individual who, jointly with his or her spouse, has a gross annual income of RM250,000 per annum or above.

Retail Investors are all other individuals above the age of 18 and corporations and partnerships that are legally able to invest in businesses, and who falls outside the definition of sophisticated investors and angel investors.

Persons who are resident outside of Malaysia are allowed access to Hostings and investment opportunities on the Platform only if such access does not violate the laws of their country of residence. The portions of the Platform that relate to the viewing of Hostings or to making investments on the Issuers may not be used by any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where the ECF Operator or one of its affiliates is not authorized to provide such information or services.

The registration of the Investor on the Platform shall be subject to the approval of the ECF Operator. The ECF Operator shall have the sole discretion to approve or to reject the User’s application to become an Investor on the Platform and shall not be required to provide any reasons for its decisions. The ECF Operator may attach conditions to its acceptance of the Investor’s registration.

The Investor hereby agrees to allow the ECF Operator to carry out any identity, credit and fraud checks on the Investor and where appropriate its officers, directors, employees and representatives. The ECF Operator may engage the service of any third party service providers to conduct such checks. When requested by the ECF Operator, the Investor and where applicable, its officers, directors, employees and representatives shall promptly submit their identity documents, bank details and any other information and/or documents that the ECF Operator may reasonably request.

Each Investor shall ensure that only the Investor shall have access to the Platform by using his own login details. Any login to the Platform by using the Investor’s login details shall be deemed to have been made by the Investor. The Investor shall not misuse its login details and the Platform to the detriment of the ECF Operator and the Platform. The Investor shall be responsible for all information and activities carried out on the Platform by anyone using the Investor’s login details. The Investor shall immediately notify the ECF Operator in writing of any breach of security, loss, theft or unauthorised use of the login details of the Investor.

The Investor shall only use and access the Platform for the purposes contemplated by these Terms and for no other purposes, and they hereby agree not to adapt or circumvent the systems in place in connection with the Platform, nor access the Platform for any unauthorised, malicious, illegal or fraudulent purpose. The ECF Operator reserves the right at its sole discretion not to act on any instructions received from the Investor where the ECF Operator in its reasonable opinion, suspects any unauthorised, malicious, illegal or fraudulent activity.

The Investor hereby assigns absolutely to the ECF Operator all title, benefits and interest relating to copyright on the contents published on the Platform by the Investor, including but not limited to texts, graphics, drawings, layouts and photographs.

The ECF Operator reserves the right at its sole discretion, at any time and from time to time, to prevent, stop and/or disallow by any means, any Investor to continue using the Platform without assigning any reason whatsoever, and/or to revoke the registration status and deactivate the account of the Investor from the Platform.

The revocation of the status of the Investor under these Terms shall not result in a termination of any contract or other agreement to which the Investor is a party at that time.

INVESTMENT LIMITS

There is no restriction on the investment amount that may be made by a Sophisticated Investor.

An Angel Investor is allowed to invest a maximum of RM500,000 within a 12-month period on the Platform and any other equity crowdfunding platform.

A Retail Investor is only allowed to invest a maximum of RM5,000 per Issuer with a total investment amount not exceeding RM50,000 within a 12-month period on the Platform and any other crowdfunding platform.

The investment limits specified Clause 10 are applicable to local and foreign investors.

DECLARATION BY INVESTORS

The Investor shall declare his own Investor category and any investment made on any equity crowdfunding platform for the immediately preceding 12-month period before making the investment on each Hosting. That declaration places the responsibility of truthfulness upon the Investor.

The ECF Operator shall not be held responsible to any person for any false declarations made by the Investor and the Investor shall indemnify and keep indemnified in full the ECF Operator against all losses, costs, expenses, damages, penalties, fines, liabilities or claims of whatsoever nature that may be suffered or incurred by the ECF Operator as a result of any false declarations made by the Investor. In addition, prior to making any investment through the Platform, the Investor may be required to provide any information and/or supporting documents that provide proof that the Investor is a Sophisticated or Angel Investor. The Investor’s failure to provide any information and documentation requested to confirm the Investor’s status as a Sophisticated or Angel Investor shall be cause for the ECF Operator to immediately discontinue the Investor’s use of the Platform.

INVESTMENT PROCESS

The Investors shall be entitled to participate in a Hosting by depositing the ECF Funds into the Trust Account during the Offer Period.

The Offer Period shall end on the earlier of the following:

  1. the Targeted Amount is raised; or
  2. the last date of the Offer Period as set out in the Offer Documents,
  3. and for the avoidance of doubt, in case of paragraph (a) above, in the event the Targeted Amount is not maintained at the expiry of the Cooling-Off Period, and subject to the prior written approval of the ECF Operator, the Offer Period may be extended to the last date of the Offer Period as set out in the Offer Documents ("Extended Offer Period").

During the Offer Period, the Issuer shall not (a) offer its shares for subscription or any interest therein to any persons other than to the Investors on the Platform, unless otherwise agreed in writing by the ECF Operator; (b) communicate any offer or inducement to engage in investment activity to any person other than to the Investors on the Platform; and (c) participate in any other equity crowdfunding platform or engage in discussion with any registered market operator.

The Issuer shall indemnify the ECF Operator against all claims, demands, liabilities, costs, expenses, damages, fines, penalties and losses of whatsoever nature (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by, arising out of or in connection with a breach of this Clause 10 by the Issuer.

Where the Targeted Amount has been met whether on or before the expiry of the Offer Period or the Extended Offer Period (if applicable), the Issuer shall allow the Cooling-Off Period to expire before the Targeted Amount raised may be released to the Issuer.

During the Cooling-Off Period, the Investors are allowed to withdraw their ECF Funds, free of interest, from the Trust Account by putting a written request to the ECF Operator on or before the expiry of the Cooling-Off Period. The refund of the ECF Funds to the Investor shall be contingent on the Trustee releasing the ECF Funds to the ECF Operator or the Investor.

If the Hosting is successful (i.e. the Targeted Amount has been raised and remains so upon the expiry of the Cooling-Off Period), a contract for subscription and issuance of shares (“Contract”) shall arise between the Issuer and the relevant Investors. The Issuer shall and shall procure the relevant persons to execute all necessary acts, deeds and actions to give effect to the Hosting and Offer Documents before the Targeted Amount raised may be released to the Issuer, and the Issuer shall issue the shares to the relevant Investors upon receipt of the Targeted Amount raised. The Investor acknowledges that shares issued by the Issuer shall be registered in the name of a nominee appointed by the ECF Operator, subject to terms and conditions in the nominee agreement. As such, the Investor shall only have a beneficial interest in the Shares in accordance with the terms and conditions of the nominee agreement.

In the event the Targeted Amount is not met or the Targeted Amount is not maintained at the expiry of the Cooling-Off Period, the Hosting shall be deemed unsuccessful and the Trust Funds shall be refunded free of interest to the relevant Investors after the expiry of the Cooling-Off Period. The refund of the Trust Funds to the relevant persons shall be contingent on the Trustee releasing the funds.

In the event of Oversubscription, the Issuer shall be entitled to receive the Agreed Oversubscription Amount (if any). For the avoidance of doubt, in the event the Issuer wishes to receive the Agreed Oversubscription Amount, the Issuer shall set out in the Offer Documents the manner of dealing with Oversubscription, whether it shall (a) allot its shares to all Investors in proportion to their respective ECF Funds, and refund to each Investors the ECF Funds in excess of their actual subscription free of interest; or (b) allot its shares to Investors on a first-come-first-serve basis, and refund the balance of the ECF Funds free of interest to Investors who make the later deposits. The Issuer shall not be entitled to any Oversubscription Amount if the Offer Documents shall be silent on Oversubscription. The refund of the relevant amount to the relevant persons shall be contingent on the Trustee releasing the funds.

LIMIT TO FUND RAISING

The Issuer shall only utilise the Platform to raise a maximum funds of RM10 million in its lifetime.

The limit to fund raising set out in the foregoing paragraph does not apply to a microfund hosted on the Platform.

FEES

The Issuer shall pay the following fees (inclusive of Goods and Services Tax) to the ECF Operator:

  1. in respect of the Review (whether or not the Proposal is approved): a fee of RM1688; and
  2. in respect of a successful hosting: a fee of between 3.5% to 7% (which shall prior to hosting agreed in writing in a separate equity crowdfunding agreement between the Issuer and the ECF Operator) of all monies raised by the Issuer as a result of the Proposal being Hosted on the Platform, irrespective of whether such monies arise directly or indirectly from the hosting,
  3. (together the “Fee”).

The Issuer acknowledges that ancillary charges or fees, including legal fees, may be payable by the Issuer to third parties in connection with the Proposal, Offer Documents and/or hosting. The Issuer agrees to indemnify the ECF Operator against any claims, losses, costs or expenses resulting from a breach of this Clause 12.2.

The ECF Operator shall be entitled to deduct the Fee and any amount owing from the Issuer to the ECF Operator from the Targeted Amount raised before releasing such amount to the Issuer.

WARRANTIES AND UNDERTAKINGS

The Issuer and its Authorised Representatives warrant and represent to the ECF Operator as follows:

  1. the Issuer is a private company duly incorporated in Malaysia;
  2. in respect of each hosting, the Issuer does not breach the limit to fund raising prescribed by the Guidelines; and
  3. the investment structure contained in the hosting complies with all legal and regulatory requirements (relating to financial promotions or otherwise).

The Investor warrants and represents to the ECF Operator as follows:

  1. he is a natural person of full age and of sound mind;
  2. it is a company duly incorporated in accordance with the laws of its place of incorporation (if applicable); and
  3. the declaration as may be made from time to time by the Investor pursuant to Clause 11 is true, accurate, complete, not misleading and does not contain material omission.

The Issuer and its Authorised Representatives, and the Investor severally represent and warrant to the ECF Operator as follows:

  1. all information and documents provided to the ECF Operator is true, accurate, complete, current, not misleading and does not contain any material omission, in all respects and that they shall update the ECF Operator if any of the information they have provided is not up-to-date;
  2. there is no action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official (whether pending or threatened) that is likely to affect the legality, validity or enforceability of these Terms, or affect the its ability to perform its obligations hereunder;
  3. it shall be personally responsible for the use and access of the Platform using the its account or login details;
  4. it shall use and access the Platform at its own risk;
  5. it shall use and access the Platform in accordance with these Terms and other terms and conditions of the ECF Operator, and in accordance with any law for the time being in force in Malaysia, including but not limited to the Communications and Multimedia Act 1998, and shall not use the Platform for any unlawful purpose;
  6. it shall not adapt, modify, copy, translate, distribute, transmit, display, perform, reproduce, publish, license, transfer, download, post, create derivative works from, framing and using, any contents belonging to the ECF Operator or published by other Users on the Platform;
  7. it shall not transfer and/or sell any information, software, user list, database, texts, graphics, logos, photos, audio files, visual files and other information, data and document provided through or obtained from the Platform to any person;
  8. it shall not decompile, reverse engineer or otherwise attempt to discover the source code of the Platform, and/or any contents available on the Platform;
  9. it shall not, without written authorization from the ECF Operator, access, hack into, interfere with, disrupt, disable, over-burden or otherwise impair the proper functioning of the Platform, including but not limited to the following means: denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, reverse engineering or reprogramming; and
  10. it shall not initiate any transaction or transact, transmit or receive payment transfers via the Platform for or in connection with any criminal or illegal purpose or any purpose that may contravene any anti-money laundering laws.

THE ROLE OF PITCHIN

The ECF Operator performs an administrative role in matching Investors and Issuers and distributing documentation and information between such parties. For the avoidance of doubt, the ECF Operator is not a party to any contract between the Investors and the Issuers (unless in its capacity as an Investor) and it does not accept receipt of any monies from the Investors or from the Issuers other than for payment of the Fees.

The ECF Operator does not provide any advice (including but not limited to investment, legal, taxation or other advice) with respect to any aspect of the transactions conducted through the Platform, other than advice on the technical use of the Platform. Nothing on the Platform or any communications sent to the Users shall constitute or is intended to constitute advice.

FORCE MAJEURE

The ECF Operator shall not be liable to any person and shall not be deemed to be in breach of these Terms by reason of any delay in performing or failure to perform any of its obligations under these Terms if the delay or failure was caused by an event of force majeure.

Without prejudice to the generality of the foregoing provision, force majeure shall include but not limited to the following:

  1. act of God, including but not limited to fires, explosions, earthquakes, drought, tidal waves and floods, or accident;
  2. war, threat of war, act of terrorism or threat of terrorism, sabotage, insurrection, civil disturbance or requisition;
  3. restrictions imposed by any law, regulations, by-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority;
  4. interruption of traffic, strikes, lock-outs, or other industrial actions or trade disputes (whether involving the employees of the ECF Operator or third party);
  5. breakdown of internet services for any reason whatsoever, save for the willful misconduct of the ECF Operator;
  6. other unforeseeable circumstances beyond the control of the ECF Operator against which it would have been unreasonable for the ECF Operator to take precautions and which the ECF Operator cannot avoid even by using its best efforts.
  7. Upon the occurrence of any force majeure event, the performance of the ECF Operator’s obligations under these Terms shall be suspended during that period of force majeure and the ECF Operator shall be granted an extension of time for performance equal to the period of delay.

TERMINATION

The Issuer shall not terminate the hosting and/or withdraw the Proposal 14 days before the commencement of the Offer Period or at any time during the Offer Period without the prior written consent of the ECF Operator.

The ECF Operator may terminate the hosting and/or the Proposal at any time and for any reason, including but not limited to if:

  1. the Issuer or its Authorised Representative breaches these Terms; or
  2. the ECF Operator suspects that the Issuer or its Authorised Representative has committed fraud, been involved in money laundering, other criminal activities or any other improper activities; or
  3. the Issuer or its Authorised Representative uses the Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from using the Platform; or
  4. the Issuer becomes insolvent; or
    1. the Issuer or its Authorised Representative uses the Platform in any of the following ways:
    2. in any way that causes, or is likely to cause, the Platform or access to it to be interrupted or damaged in any way;
    3. for fraudulent purposes, or in connection with a criminal offence;
    4. to send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any “spam”; or
    5. to cause annoyance, inconvenience or needless anxiety to any person.

DISCLAIMERS

Each Issuer and each Investor shall only be permitted to open one account on the Platform.

Access to the Platform is permitted on a temporary basis. The ECF Operator reserves the right to withdraw or amend the service provided on the Platform without notice. The ECF Operator will endeavour to allow uninterrupted access to the Platform, but access may be suspended, restricted or terminated from time to time. The ECF Operator shall not be liable to the Issuer if for any reason the Platform is unavailable at any time or for any period.

The Platform (and the contents thereof) are not intended for distribution to, or use by, any person or entity in any jurisdiction where such distribution or use would be contrary to applicable law or regulation.

The ECF Operator shall not be responsible or liable for the content or accuracy of any information or material downloaded or posted by the Users nor shall the ECF Operator be obliged to edit the content downloaded or posted on the Platform, however the ECF Operator shall retain the right to remove any material or posting made on the Platform at its absolute discretion.

The User shall use the Platform only for lawful purposes and in a way which does not infringe the rights of any other person or restrict or inhibit any person’s use or enjoyment of the Platform. The User shall not use the Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from using the services on our Platform.

Each User warrants that it has taken all reasonable precautions to ensure that any data it uploaded or otherwise submitted to the Platform is free from viruses, Trojans, worms or other material which may have a contaminating or destructive effect on any part of the Platform.

The ECF Operator accepts no responsibility or liability for the User’s use of content on the Platform and such use is entirely at the User’s own risk. While the ECF Operator takes reasonable precautions to prevent the existence of computer viruses or other malicious programs on the Platform, the ECF Operator accepts no liability for them if they do exist. The Usershall use, update and maintain appropriate antivirus software on their computer.

LIABILITY

The User shall be liable to the ECF Operator for any loss or damage, costs, expenses, liabilities, fines, penalties, demands, or claims of any nature whatsoever suffered by the ECF Operator as a result of any breach of these Terms or the fraudulent use of the Platform by the User or its employees, officers, servants, agents or representatives.

The User agrees to indemnify the ECF Operator against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by, arising out of or in connection with any breach by the User or its employees, officers, servants, agents or representatives of these Terms and other terms and conditions as may be formulated from time to time by the ECF Operator.

The ECF Operator shall not be liable to the User for any loss or damage, costs, expenses, liabilities, fines, penalties, demands, or claims of any nature whatsoever which the User may suffer as a result of using the services provided via the Platform, or posting the Proposal, Offer Documents or hosting on the Platform except where such loss or damage arises from the ECF Operator’s breach of these Terms or was caused by negligence, wilful default or fraud by the ECF Operator or its employees.

The ECF Operator makes no warranties or representations and assume no liability in respect of the User for the content of the Proposal, Offer Documents and Hosting or the validity of the investment structure detailed in the Proposal, Offer Documents and Hosting or its compliance with any and all legal and regulatory requirements or any other documents submitted to the ECF Operator. The ECF Operator strongly advises the User to seek independent advice in respect thereof and the User shall be personally liable for all costs and expenses in respect of such advice.

The User acknowledges that successfully passing the Review, or the investment in the Issuer by the ECF Operator or any company in its group or any person connected or associated with the ECF Operator, is not an indication of approval of the Proposal, Offer Document and Hosting generally and the User confirms that it shall not rely on or take any inference from the same.

GENERAL

Nothing herein shall be construed to create a partnership, joint venture, agency or employment relationship between the parties. No party has authority to enter into agreements of any kind on behalf of the other Party.

No failure on the part of any party to exercise and no delay on the part of any party in exercising any right hereunder will operate as a release or waiver thereof, nor will any single or partial exercise of any right under these Terms preclude any other or further exercise of it.

No remedy conferred by any of the provisions of these Terms is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by any of the parties shall not constitute a waiver by such party of the right to pursue any other available remedies.

The ECF Operator reserves the right to amend, vary and/or supplement these Terms from time to time. Any amendments, variations and/or supplements to these Terms shall be effective when posted on the Platform. The User’s continued use of the Platform on or after the date on which such amendments, variations and/or supplements come into effect shall be construed as the User’s agreement to be bound by the amended Terms.

The communications between the ECF Operator and the User shall be made through the Platform, or mailed, personally delivered, faxed or emailed to the recipient at the current address held in the ECF Operator’s record.

These Terms shall be binding upon the respective successors-in-title and permitted assigns of the parties. The User shall not assign or transfer its rights, title, interests and benefits under these Terms or any of its liabilities and obligations hereunder without the prior written consent of the ECF Operator.

If any provision of these Terms or part thereof is or may become under any written law, or is found by any court or administrative body or competent jurisdiction to be illegal, void, invalid, prohibited or unenforceable then:

  1. such provision or part thereof shall be read down or severed only to the extent of such illegality, voidness, invalidity, prohibition or unenforceability;
  2. the illegality, voidness, invalidity, prohibition or unenforceability of any provision or part thereof in any jurisdiction shall not affect the legality, validity or enforceability of any other provision or of that provision in any other jurisdiction, and the remaining provisions of these Terms shall remain in full force and effect; and
  3. the parties shall use their respective best endeavours to negotiate and agree on a substitute provision which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking.

The Parties hereby agree that the provisions contained in these Terms and other terms and conditions as may be formulated by the ECF Operator from time to time shall constitute the entire agreement between the parties in respect of the subject matter of these Terms and supersede all previous memoranda, expectations, understandings, communications, representations and agreements whether oral or written between them in respect of the subject matter hereof.

These Terms shall be governed by and construed in accordance with the laws of Malaysia.

In the event any dispute or difference shall arise amongst the ECF Operator and the User and/or between the Users as to the construction of these Terms or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, including any question regarding its existence, validity or termination, such dispute or difference shall be submitted to a single arbitrator to be appointed by the parties in dispute or, failing agreement within 14 days after either party in dispute has given to the other party in dispute a written request to concur in the appointment of an arbitrator, a single arbitrator to be appointed by the Chairman for the time being of the Asian International Arbitration Centre (“AIAC”) and such submission shall be a submission to arbitration in accordance with the Rules of the AIAC as presently in force by which the Parties in dispute agree to be so bound. The place of arbitration shall be Malaysia and the arbitration shall be conducted wholly in the English language.

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RISK WARNING


Equity Crowdfunding is risky. You are investing in early stage companies which may not do well and could even fail. You could lose part or all of your investment. You may not be able to sell your shares easily.

Investments are speculative and carry high risks. To decrease exposure, these types of investments should only be made as part of a diversified portfolio. Spread your risks and only invest money that you can afford to lose. pitchIN wants all investors to understand these risks and make careful investment decisions. You are also encouraged to seek independent advice.