Dated of 2020
LEET CAPITAL SDN BHD
(Company No. 1341808D)
(INSERT NAME OF ISSUER)
(Company No. ●)
(INSERT NAME OF PROMOTER)
(NRIC No. ●)
FOR THE ENGAGEMENT OF LEET CAPITAL SDN BHD FOR THE FUNDRAISING EXERCISE ON WWW.LEET.CAPITAL
THIS ISSUER AGREEMENT (“Agreement”) is made on the day of 2018
1. LEET CAPITAL SDN BHD (Company No. 1341808D), a company incorporated in and existing under the laws of Malaysia and having its business address at Leet Capital Sdn Bhd, Found8 KL Sentral, No 5, East Wing, Level, 3, Jalan Stesen Sentral, Kuala Lumpur Sentral, 50470 Kuala Lumpur (“ECF Operator”);
2. [Insert name of Issuer] [Company No. ] a company incorporated in and existing under the laws of Malaysia with its registered address at [Registered Address] and having its business address at [Business Address] (“the Issuer”);
3. [Insert name of Promoter] [NRIC No. ] having his address at [Address] (“the Promoter”).
(ECF Operator, the Issuer and the Promoter are hereinafter collectively referred to as “Parties” and “Party” refers to any one (1) of them, as the context may require.)
A. ECF Operator is the operator of the Equity Crowdfunding Platform licensed by the Securities Commission under Section 34 of the Capital Markets and Services Act 2007 and operates the website domain www.leet.capital (“Platform”). The Platform seeks to assist private companies in Malaysia to raise funds by way of offering shares to the public.
B. The Issuer through the Promoter has made an application to ECF Operator to raise funds through the Platform and ECF Operator has approved the application of the Issuer to be hosted on the Platform subject to the terms and conditions herein.
NOW IT IS AGREED AS FOLLOWS :
Definitions & Interpretation
In this Agreement, unless the context otherwise requires, the following expressions shall bear the following meanings:
means the days on which banks are opened for business in Kuala Lumpur Malaysia and excludes any public holidays, Saturdays and Sundays;
has the meaning specified in Clause 2.2;
has the meaning specified in Clause 2.3;
has the meaning specified in 8.2.1(ii);
the date for the completion of the allotment and issue by the Issuer and subscription by the Investors of the Offer Shares and is as defined in Clause 8.2.2;
Completion of Conditions Precedent
has the meaning specified in Clause 8.2.1;
has the meaning specified in Clause 8.2.1;
has the meaning specified in Clause 12.4;
refers to any individual director of the Issuer;
has the meaning specified in Clause 9.1;
means the date of this Agreement;
has the meaning specified in Clause 6.1;
means the investor who has successfully registered as an investor on the Platform;
has the meaning specified in Clause 8.1;
“Minimum Fundraising Amount”
refers to the minimum campaign fundraising amount raised by the Issuer pursuant to the term sheet, engagement or otherwise agreed between the Issuer and the Platform;
shares being offered by the Issuer to the Investor registered with the Platform;
means the equity crowdfunding platform operated by ECF Operator under the website domain www.leet.capital;
refers to the founder(s) of the Issuer, or key management of the Issuer, as the case may be;
and the expression “Public Authority” shall refer to any of them;
refers to the Securities Commission of Malaysia being the regulatory authority for the Platform and ECF Operator;
means the business processes, step-by-step process, rules, procedures, diagram, manual, work flow and / or guidelines as may be contained in the manual, handbook or any other documents that explains how the Platform operates and how ECF Operator operates the Platform, as may be updated, modified and revised from time to time;
means the campaign undertaken by the Issuer on the Platform where the targeted amount sought to be raised by the Issuer is met;
has the meaning specified in Clause 7;
means the period of eighteen (18) months commencing from the Effective Date;
has the meaning specified in Clause 8.1; and
means the relevant covenants, undertakings, representations and warranties given by the Issuer and/or the Promoter to ECF Operator in this Agreement, including but not limited to those set out in Clause 9.
In this Agreement, unless the context otherwise requires :
(a) recitals, headings and underlinings are for convenience only and do not affect the interpretation of this Agreement;
(b) words importing the singular include the plural and vice versa and words importing a gender include any gender;
(c) an expression importing a natural person includes any corporation or other body corporate, partnership, association, public authority, two or more persons having a joint or common interest, or any other legal or commercial entity or undertaking;
(d) a reference to a party to a document includes that party’s successors and permitted assigns;
(e) any part of speech or grammatical form of a word or phrase defined in this Agreement has a corresponding meaning;
(f) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted and shall include all by-laws, instruments, orders rules and regulation made thereunder;
(g) any reference to a date or time is a reference to that date or time in Malaysia;
(h) words denoting an obligation on a party to do an act, matter or thing includes an obligation to procure that it be done or words placing a party under a restriction include an obligation not to permit an infringement of the restriction;
(i) the words “hereto”, “herein”, “hereinafter”, hereinbefore”, “hereof”, “hereunder”, and other words of similar import shall refer to this Agreement as a whole and not to any particular provision;
(j) “including” and similar expressions are not and must not be read or treated as words of limitation;
(k) a period of days from the occurrence of an event or the performance of any act or thing shall be deemed to include the day on which the event happens or the act or thing is done or to be done (and shall be computed from the day immediately following such event or act or thing), and if the last day of such period is not a Business Day, then the period shall include the next following day which is a Business Day;
(l) references to Recitals, Clauses and Schedules are to recitals and clauses of and schedules to this Agreement and the Recital an Schedules shall be taken, read and construed as essential parts of this Agreement;
(m) references to this “Agreement” shall mean this Agreement as may be amended from time to time; and
(n) no rule for the construction or interpretation of contracts shall apply to the disadvantage of a party for the reason that the party was responsible for the preparation of this Agreement or any part of it.
Commencement & Engagement
- This Agreement shall take effect on the Effective Date and shall continue during the Term unless otherwise terminated in accordance with the provisions of this Agreement.
- During the duration of the Term, the Issuer grants ECF Operator the exclusive and irrevocable right to host and publish its project that requires funding on the Platform and in respect of which has undergone initial screening, evaluation of the Issuer for investment suitability and certain processes with ECF Operator’ management and team (“Campaign”).
- The Issuer hereby acknowledges and agrees that the Campaign shall run for a period of ninety (90) calendar days or any other period as may be notified by the ECF Operator to the Issuer in writing commencing on the date that the Campaign is listed on the Platform and expiring on the thirtieth (30th) day thereafter (“Campaign Period”). The Campaign Period may be extended for a further period of thirty (30) calendar days or any other such extended period subject to the approval of ECF Operator.
- During the Term, the Issuer is restricted from undertaking or carrying out any of the following:
(a) approach, interact or communicate with any other equity crowdfunding operators as licensed by the Securities Commission under Section 34 of the Capital Markets and Services Act 2007 from time to time, for the prospect of being hosted on their platforms and this is notwithstanding that such other equity crowdfunding operators makes the first attempt to communicate or interact with the Issuer; or
(b) carry out fund raising exercise for other projects that are being developed or to be offered by the Issuer (whether or not on its own or with collaboration, partnership or venture with other parties, or whether such collaboration, partnership or venture is informal or formal, incorporated or unincorporated) with any other equity crowdfunding operators as licensed by the Securities Commission.
- Subject to Clause 3.1 above, the Issuer shall not without prior written approval of ECF Operator, source for and commit to any other funding from any parties during the Term
- The Issuer hereby grants ECF Operator the right to use the Issuer’s name, trademark(s) and logo(s) on any marketing material (whether in digital, physical or other form) published by ECF Operator at any point in time, including but not limited to marketing materials related to the Issuer’s fundraising activities on ECF Operator’s platform that the Issuer has publicly released (“ECF Operator’s Marketing Materials”). ECF Operator need not obtain the Issuer’s consent or permission prior to publishing any of ECF Operator’s Marketing Materials.
- Where the Issuer publishes any marketing materials in relation to its fundraising activities including but not limited to its activities on ECF Operator’s platform and/or relationship with ECF Operator (whether in digital, physical or other form) at any point in time during the term of this Agreement (the “Issuer’s Marketing Materials”), the Issuer shall include ECF Operator’s name, trademarks and logos in the Issuer’s Marketing Materials. ECF Operator shall review the Issuer’s Marketing Materials before publication of the same. The Issuer shall comply with ECF Operator’s reasonable requests to change any part of the Issuer’s Marketing Materials and shall not publish or distribute any of the Issuer’s Marketing Materials without first obtaining ECF Operator’s approval. Unless otherwise agreed, the Issuer shall not include ECF Operator’s name, trademarks and logos in any marketing materials upon the expiration or termination of this Agreement.
- ECF Operator may, but is in no way obliged to, seek specific permission from the Issuer prior to using any of the Issuer’s Marketing Materials for ECF Operator’s own purposes, including but not limited to the promotion of ECF Operator, ECF Operator’s platform and ECF Operator’s activities.
- ECF Operator and the Issuer each acknowledge that any and all of the copyrights, trademarks and other intellectual property rights belonging to each party shall remain the property of the respective party and shall not be used or adopted by the other party in any way at any time during or after the expiry or termination of this Agreement except as set out herein.
The Issuer agrees that ECF Operator shall be entitled at its absolute discretion to cancel, withdraw, restrict, suspend, vary or modify the use, and/or features of its services in relation to the Campaign (“Campaign Services”) (whether in whole or in part) and to vary or modify this Agreement or such other terms and conditions (whether in whole or in part) at any time from time to time without notice and without giving any reason therefor and ECF Operator shall not be liable to the Issuer for any loss or damage as a result thereof.
- In consideration of ECF Operator agreeing to publish and host the Campaign on the Platform (subject always to the SOP and regardless of whether it is required by the Securities Commission or otherwise), the Issuer agrees to pay ECF Operator the fees of an amount that is equivalent to four per cent (4.0%) to seven per cent (7.0%) of the total amount raised through the Platform (“Fee”). The Issuer acknowledges and agrees that the Fee is subject to revision in accordance with ECF Operator’s policies and SOP.
- Immediately upon execution of this Agreement, the Issuer shall pay to the ECF Operator a non-refundable administrative fee of Ringgit Malaysia One Thousand Five Hundred (RM1,500.00) or any other amount as may be revised by the ECF Operator at its sole and absolute discretion from time to time.
- The Issuer acknowledges that ECF Operator has a selection process for identifying potential investors based on the investment mandate and chosen industry preference by such investors (“Targeted Investors”). The Issuer hereby agrees to ensure that the Issuer’s representatives such as its Promoter, directors and/or key management team will be available during any discussion meeting organised by the ECF Operator (subject always to the absolute and final discretion of ECF Operator). If required, the Issuer shall assist the ECF Operator by providing any relevant documents to the Targeted Investors upon request by the ECF Operator. As there may be discussion sessions arranged by ECF Operator with the Targeted Investors, the Issuer hereby warrants and undertakes that it shall not approach the Targeted Investors (whether by email, telephone call / message, letter, verbal, directly or indirectly through intermediaries or parties) in respect of the Campaign unless ECF Operator first consented to the same in writing.
- Trust Account
The Issuer acknowledges and agrees that, as required by the Securities Commission, the funds raised from investor(s) during the Campaign Period (“Investors’ Funds”) shall be held in a trust account established and maintained by ECF Operator with a trustee company incorporated under the Trustee Act 1949 (“Trust Account”).
- Release of Investors’ Funds for Successful Campaign
- The Issuer acknowledges and agrees that in the event of a Successful Campaign, the obligation of the Investor to subscribe for the Offer Shares, and ECF Operator’ obligation to release the Investors’ Funds (net of the Fee and any other charges, if applicable) to the Issuer is conditional upon and subject to the following being obtained or fulfilled, as the case may be, (collectively called the “Conditions Precedent”):
- there being no material adverse change (as determined by ECF Operator) in the prospects, product / services, business, operations or financial condition of Issuer and receipt of the letter issued by the Issuer to ECF Operator confirming that there is no such material adverse change;
- expiry of the period of six (6) Business Days after the date of the Successful Campaign (being the cooling-off period imposed by the Securities Commission) to allow the Investor to opt-out or proceed with investing in the Issuer and Campaign (“Cooling-off Period”);
- the execution by and between the Issuer and all such Investor(s) of any and all definitive transaction documents with respect to Campaign;
- receipt of the written approval by the authorised representative and/or director of the Company for the allotment and issue of the Offer Shares to the Investors who participated in the Campaign;
- ECF Operator being satisfied that there is no significant change in the economic, political or investment environment which may affect the proposed investment by the Investor in the Issuer or the financial or trading position or prospects of the Issuer prior to the Completion Date;
- where applicable, the completion of the legal, technical, business and financial due diligence exercise by ECF Operator on the Issuer, including the implementation by the Issuer (to the satisfaction of ECF Operator) of all recommendations in respect thereof from ECF Operator, and the results of such exercise being satisfactory to ECF Operator;
- where applicable, the Issuer and its representatives satisfying the due diligence enquiries as required by the trustee of the Trust Account; and
- any other conditions deemed appropriate by ECF Operator.
The Conditions Precedent shall be fulfilled within fourteen (14) calendar days after the expiry of the Campaign Period and may be extended at the absolute discretion of ECF Operator. ECF Operator shall issue a written confirmation to the Issuer within three (3) calendar days upon fulfilment of the Conditions Precedent (“Completion of Conditions Precedent”).
- Completion of the allotment and issue of the Offer Shares shall occur at the office of the Issuer in accordance with Clause 8.4 however subject always to Clause 8.5, within twenty one (21) calendar days after the Completion of the Conditions Precedent (or any extended period as may be determined by ECF Operator) (“Completion Date”).
- Refund of Investors’ Funds for Unsuccessful Campaign
- The Issuer further acknowledges and agrees that in the event that the Campaign is unsuccessful, ECF Operator shall be entitled to make a refund from the Investors’ Funds to each Investor who has participated in the Campaign, in the amount equivalent to the monies invested by the respective Investor in the Campaign. In the event of any shortfall due to transaction or banking charges, the shortfall will be absorbed and duly covered by the Issuer.
- Completion of the Subscription of Offer Shares
- Subject to Clause 8.5 (Rescission) below, Completion shall occur at the Issuer’s principal place of business (or at such other place as designated by ECF Operator including the Company Secretary’s office) on or before the Completion Date.
- Subject to the fulfilment of the Conditions Precedent, the Issuer shall, and / or the Promoter shall procure and ensure that the Issuer shall cause the following matters to occur on or before the Completion Date:
(i) where applicable, amendment to the Constitution of the Issuer to facilitate the issue of the Offer Shares to the Investors; and
(ii) the allotment and issue of the Offer Shares upon the terms of this Agreement and the SOP,
each of which must be approved by the shareholders of the Issuer by the passing of a members’ resolution in a form and content acceptable to ECF Operator.
- On or before the Completion Date, the Issuer shall, and / or the Promoter shall procure and ensure that the Issuer shall convene a meeting of the Directors or procure a Directors’ circular resolution to pass the appropriate resolutions authorising:
- the allotment and issue of the Offer Shares to the Investors;
(iii) the registration of each and every Investor in the register of members of the Issuer as the holder of the Offer Shares on the terms and conditions of this Agreement and the SOP; and
(iv) the affixing of the common seal unto the share certificates representing the Offer Shares and the issue of the corresponding share certificate(s) to each Investor.
- No later than the Completion Date, ECF Operator shall effect payment for the Offer Shares (less the deductions by ECF Operator for the Fee and other costs as described in Clause 17 (Costs and Expenses)) to the Issuer and in exchange for which the Issuer shall instruct the Company Secretary to each of the relevant Investors and a copy to the ECF Operator:
(i) the share certificate representing the corresponding Offer Shares; and
- certified true copies of the resolutions referred to in Clauses 8.4.2 and Clause 8.4.3.
The Issuer hereby agree and acknowledges that it is the responsibility of the Issuer to ensure compliance of the provisions under this Agreement. The ECF Operator, may, at its sole and absolute discretion facilitate the Issuer with third party/ service providers in view of assisting the Issuer in completing the transaction.
- If on or before the Completion Date:
(i) any of the documents required to be delivered to ECF Operator are not forthcoming for any reason;
(ii) any information, data and/or documents provided to ECF Operator is found to be untrue, inaccurate, false or misleading or from which there is an omission, such that if such omission was made known to ECF Operator, ECF Operator would not have agreed to host the Issuer on the platform and entered into this Agreement;
(iii) the Issuer and/ or the Promoter breach any of the Warranties or any provisions of this Agreement;
(iv) any of the Warranties given by the Issuer and/or the Promoter in this Agreement is found to be untrue, accurate, false or misleading;
(v) if the Issuer has bank borrowings or facilities made available by the financial institutions or other lending company as licensed under the Malaysian laws, the Issuer defaulting in its repayment obligations of such bank borrowing or failing to service the facilities, or such bank borrowing or facilities are terminated or recalled for any reason whatsoever;
(vi) any Public Authority commences any litigation, arbitration or prosecution proceedings against the Issuer or the Promoter; or
(vii) the ECF Operator determines that there is an occurrence of any “material adverse change” as imposed by the Securities Commission’s Guidelines on Recognised Markets therein;
then, ECF Operator shall be entitled, at its absolute and final discretion, to elect any of the following:
(i) to effect completion of the investment and subscription of the Offer Shares (without prejudice to its rights and remedies against the Issuer and / or Promoter, including the right to claim damages) so far as practicable having regard to the defaults which have occurred; or
(ii) to fix a new day for completion (not being more than 14 calendar days after the original Completion Date), in which case the foregoing provisions of this Clause shall apply to completion as so deferred; or
(iii) to rescind this Agreement without liability on its part, in which event the Issuer shall pay the costs and expenses agreed to be borne by the Issuer pursuant to Clause 17 which amount shall be paid within 15 Business Days after the notice of rescission from ECF Operator, and thereafter, this Agreement shall terminate and be null and void and of no further effect whatsoever and none of the Parties shall have any claims against the other hereunder for costs, damages, compensation or otherwise, save in respect of any antecedent breach of the terms herein.
- At any time during the Term, in the event that Issuer wishes to rescind this Agreement for any reason by providing a written notice to the ECF Operator stating its intention to do so, the Issuer hereby agree and acknowledges that the ECF Operator shall be entitled to the termination fees as follows:
- Ringgit Malaysia Five Thousand (RM5,000.00); or
- an amount that is equivalent to two per centum (2.0%) of the Minimum Fundraising Amount raised by the Issuer,
whichever is lower, being the termination penalty which will be invoiced by the ECF Operator to the Issuer.
Representations, Warranties and Undertakings
- The Issuer and Promoter, hereby jointly and severally undertakes to provide ECF Operator and its officers, advisor, agents and / or third party service providers with the necessary and relevant information, documents, records and materials in relation to the Issuer and its business, projects, operation and finance as may be requested and determined by the ECF Operator (“Disclosure Documents”).
- The Issuer and Promoter, hereby jointly and severally warrants and undertakes with ECF Operator:
- that by virtue of entering into this Agreement, the Issuer will not be in breach of any express or implied terms of any contract with or of any other obligation to any third party binding upon the Issuer and / or the Promoter;
- that the Issuer and the Directors have not committed and are not in breach of any of the laws of Malaysia and/or any country with jurisdiction over the affairs of the Issuer, in relation to the affairs of the company and having an adverse effect on the affairs of the company;
- that the Issuer has full legal right, power and authority to execute, deliver and perform its obligations under this Agreement and all such other documents and instruments as specified or referred to in this Agreement;
- that there is no provision in the Constitution that has been or would be contravened by the execution and delivery of this Agreement;
- that all information it provides to ECF Operator pursuant to this Agreement (and, in particular, information that is necessary or relevant to the performance of ECF Operator’s obligations hereunder) are true, complete and accurate, and to rectify any error or defect of any information promptly upon discovery of the same;
- that it will carry out its duties and obligations under this Agreement in compliance with all applicable laws and regulations;
- is not insolvent and is not subject to any insolvency procedures or proceedings;
- that it has not been served with any notice or order restricting its business activities, nor been subjected to any disciplinary measures imposed by any government agency or regulator, in any country in which it carries on business;
- that it has, in the event of disaster, adequate policies and procedures in place to ensure the continued performance of its obligations under this; and
- all the representation, warranties and undertakings made under this Agreement are true, complete and accurate at the time of this Agreement, and that in the event of any such representations, warranties and undertakings ceasing to be true, complete and/or accurate, it will give ECF Operator written notification of this immediately upon becoming aware of the same.
- Where the Campaign is successful, the Issuer and / or the Promoter warrants that the Investors’ Funds shall be utilised by the Company exclusively and in accordance with the use of proceeds it published on the Platform.
- The Issuer confirms that ECF Operator’ agreement to enter into this Agreement is made on the basis of and in reliance on the following:
- the truth and correctness of the representations, warranties and undertakings set out in Clause 9.1 and Clause 9.2; and
- the Disclosure Documents provided to ECF Operator are true and accurate as if given afresh immediately before the Successful Campaign.
- If the Campaign is achieved, the Issuer shall adhere to the corporate governance standard set by ECF Operator. This shall include, but is not limited to, updating investors:
- within 2 weeks of the successful completion of a fundraising campaign via email, of:
- key details of the fundraising round;
- the corporate reporting standards that the Issuer will comply with going forward namely quarterly reporting; key financials; new product launches or relevant updates;
- updates about the Issuer’s growth strategies;
- discussion of the Issuer’s management; and
- date of the Issuer’s next Annual General Meeting and/or extraordinary general meeting;
- every quarter on the performance of the company and every month on monthly revenue (revenue-sharing);
- when any proceeds are utilised; and
- any other disclosures or updates as the ECF Operator may impose against the Issuer from time to time.
- Intellectual Property Rights, Warranties and Undertakings
- Use of logos and trademarks
The Issuer herein grants to ECF Operator a license to use the Issuer’s logos and trademarks (the “Brands”) for the purposes of this Agreement, including as outlined in Clause 4.2 above.
- Each Party acknowledges that any and all of the copyrights, trademarks, and other intellectual property rights, including the Brands, belonging to each Party, shall remain the property of each Party, and shall not be used or adopted by the other Party in any way at any time during or after the expiry or termination of this Agreement.
- Standard of Duty
The Issuer may at any time make specific requests to ECF Operator about ECF Operator’s performance of the Issuer services but has no right to, and shall not, control the manner, or determine any aspect, of ECF Operator’s performance of the Campaign Services. ECF Operator may, but is not necessarily obliged to, accommodate these requests. ECF Operator shall, in consultation with the Issuer, determine the method, details, and means of performing the Campaign Services to be carried out for the Issuer. In the course of performing the Campaign Services, ECF Operator shall at all times remain an independent contractor and not an employee, agent, joint venture, or partner of the Issuer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Issuer and ECF Operator, and the Issuer therefore shall not take any action or provide ECF Operator with any benefits or commitments inconsistent with ECF Operator’s status as an independent contractor.
- Save as otherwise required by any written law, the Issuer agrees and undertakes that it will observe the following:
12.1.1 strictly keep and maintain confidentiality on all Confidential Information (as defined below);
12.1.2 not disclose or cause to be disclosed any Confidential Information to any third party without ECF Operator’ prior written consent; and
12.1.3 where applicable, not make copies of documents or other materials containing the Confidential Information without ECF Operator’ prior written consent, and only to the minimum extent necessary for its performance hereunder.
- Notwithstanding the provision in the Clause 12.1 above, ECF Operator acknowledges and agrees that the Issuer may disclose any Confidential Information to its employees, for the sole purpose of performing its obligations hereunder and the Issuer shall ensure and procure that its employees are made aware of the confidentiality obligations of the Issuer under this Agreement and comply to such obligations.
- In the event of any unauthorised disclosure or use of any Confidential Information occurring through a disclosure made to the Issuer, the Issuer shall use all reasonable endeavours to assist ECF Operator in recovering and preventing the use, dissemination or other disposal of such Confidential Information.
- Except to the extent such information is public knowledge by way of publishing the Campaign on the Platform or becomes public knowledge other than by breach of this Agreement, “Confidential Information” of ECF Operator shall mean for the purposes of this Agreement:
12.4.1 information in relation to ECF Operator or any of its affairs, business or systems or methods of operating the Platform including, without limitation, the systems, information relating to its services, methods, systems, strategies or technical operations;
12.4.2 information confidential or secret or proprietary to ECF Operator or which otherwise gives ECF Operator an advantage over its competitors;
12.4.3 information otherwise designated as confidential or secret by ECF Operator;
12.4.4 the terms and conditions of this Agreement, the relationship between the Parties, and any negotiations or discussion between the Parties;
12.4.5 trade secrets; and
12.4.6 information imparted in confidence by ECF Operator to the Issuer regardless of whether such information is relevant in the performance of the obligations of the Parties under this Agreement.
- Without limiting the foregoing, “Confidential Information” shall include but is not limited to statistics, data, manuals, flow charts, drafts and diagrams in all forms of storage or representation including, but not limited to documents, loose notes, diaries, memoranda, drawing, photographs, electronic storage and computer printouts.
- The Issuer acknowledges that the value of the Confidential Information and the Issuer’s undertaking contained in this Clause is such that an award of damages or an account of profits may not adequately compensate ECF Operator in the event of a breach of this Agreement by the Issuer. The Issuer acknowledges that without in any way compromising ECF Operator’ right to seek damages or any other form of relief in the event of a breach of this Agreement, ECF Operator may seek and obtain an ex-parte interlocutory and final injunction to prohibit or restrain the Issuer or its employees, agents or sub-contractors from any breach or threatened breach of this Agreement.
- This Clause shall survive termination of this Agreement.
The Issuer shall indemnify ECF Operator, its employees, servants and third party service providers from and against any and all actions, proceedings, liabilities, claims, demands, losses, damages, charges, costs (including legal costs of defending or settling any action, claim or demand) and expenses which ECF Operator, its employees, servants or third party service providers may at any time and from time to time, sustain, incur or suffer by reason of or arising out of or in the course of:
- the breach of the Issuer of its obligations under this Agreement; or
- any act or omission on the part of the Issuer.
- limitation of liability
- The Issuer hereby agrees that ECF Operator and its affiliates (and the directors and employees of ECF Operator and its affiliates), whether jointly or singly, shall not be liable for, and Issuer shall not claim against ECF Operator and/or its affiliates to recover, any loss, liability, expense or cost incurred that arises directly or indirectly out of the performance by (or on behalf of) ECF Operator or its affiliates of the Campaign Services, except to the extent that any loss, liability, expense or cost is proven by the final judgment of a court of competent jurisdiction to have resulted directly and solely from the wilful default or gross negligence of ECF Operator (or the said directors or employees). ECF Operator will not be liable for the acts, defaults or omissions of any third party, including that of any agents or sub-contractors.
- In all cases, the liability of ECF Operator and/or its affiliates, if any, will be limited only to the direct loss suffered by the Issuer, and, even then, only to the extent that such loss was reasonably foreseeable and is caused by its direct, act, default or omission. Under no circumstances will the liability of ECF Operator and/or its affiliates extend to any consequential loss or loss of profit, howsoever arising, whether or not such loss was foreseeable and whether it was suffered by the person by whom ECF Operator or its affiliates is instructed or any third party.
- ECF Operator and its affiliates shall not be held responsible for any loss, liability, expense or cost arising out of the Issuer relying on the use of its services rendered before changes in the applicable laws, rules and regulations or policies (or the interpretation thereof) and/or changes in the Issuer’s circumstances.
- The above indemnities and limitations on liability shall apply regardless of the form of action, loss, damage, claim, liability, cost, or expense, and whether the cause of action lies in contract, statute, tort or otherwise.
The ECF Operator’s Marketing Materials or any documentation that ECF Operator prepares is provided without any representations or any kind of warranties whatsoever (whether express or implied by law). ECF Operator expressly disclaims to the fullest extent permitted by law all express, implied and statutory warranties, including without limitation, the warranties as to functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Neither ECF Operator, nor any of its directors, officers, employees, members, representatives, affiliates, agents, parent(s), subsidiaries, successors and assigns shall have any liability whatsoever for any expenses, losses or damages arising out of or in connection with, whether directly or indirectly, the functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose (or lack thereof) of and the use of or reliance on all or any part of ECF Operator’s Marketing Materials or any documentation that ECF Operator prepares.
Termination of Agreement
This Agreement shall be terminated upon the earlier of:
16.1.1 at the expiry of the Term; or
16.1.2 the completion of the Campaign on ECF Operator’s platform.
- Such termination shall be without prejudice to the terminating Party’s right of action against the other Party in respect of the latter Party’s breach of any of the provisions of this Agreement.
- Events of Default
If the Issuer:
16.3.1 commits any breach of its obligations under this Agreement or if such breach is remediable, fails to remedy such breach within three (3) Business Days from the service of a written notice by ECF Operator complaining of such breach;
16.3.2 provides any misleading, inaccurate, or false statement, information, data and/or documents or from which there is a an omission;
16.3.3 becomes insolvent or unable to pay its debts (if applicable); or
16.3.4 goes into liquidation or is wound up either compulsorily or voluntarily (except in the case of a voluntary liquidation for the purpose of reconstruction or amalgamation),
then and in any such event, ECF Operator shall be entitled to terminate this Agreement immediately by written notice to the Issuer and the termination is effective from the date of such written notice.
- Termination of this Agreement shall be without prejudice to the rights of ECF Operator against the Issuer for breaches immediately prior to such termination. All obligations under this Agreement that are of a continuing nature shall survive termination.
Costs And Expenses
- The Issuer shall bear the following costs:
- all costs and expenses related to the legal, technical, financial and business due diligence review, training and valuation undertaken by the third party service providers engaged by the Issuer directly / or the ECF Operator to provide services to the Issuer;
17.1.2 the stamp duty payable on this Agreement; and
17.1.3 the fees, cost and charges imposed by the Company Secretary.
For avoidance of doubt, the cost described in Clause 17.1 (a) and (b) above shall be borne and payable by the Issuer even if the Campaign is not successful.
- No partnership etc
Nothing contained in this Agreement shall constitute or be deemed to constitute or create any association, partnership, joint venture, or the relationship of principal and agent or master and servant, or employer and employee between the Parties hereto or any of their related corporations, affiliates, officers, employees, agents or sub-contractors, or to provide the Issuer with the right, power or authority, whether express or implied, to bind or commit ECF Operator or create any duty or obligation on behalf of ECF Operator.
- Prior agreements
This Agreement sets out the entire agreement and understanding of the Parties in respect of the subject matter of this Agreement and supersedes and cancels in all respects all previous agreements, if any, made between the Parties in respect of the subject matter herein.
- Accrued rights
The expiration or termination of this Agreement however arising shall not operate to affect such of the provisions of this Agreement as are expressed to operate or have effect after then and shall be without prejudice to any accrued rights or remedies of the Parties.
- Dispute Resolution
In the event of any dispute arising from this Agreement, the Parties hereby agree to submit to the exclusive jurisdiction of the courts in Malaysia.
- Governing law
The laws of Malaysia shall govern the validity construction and performance of this Agreement.
Any notice to be given by a Party under this Agreement must be in writing and must be given by delivery at or by sending by post or other faster postal service, facsimile transmission, e-mail or other means of telecommunication in permanent written form (provided the addressee has facilities for receiving such transmissions) to the last known postal address, e-mail address or relevant telecommunications number of the other Party. Where notice is given by sending in a prescribed manner it shall be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it shall be sufficient to show it was despatched. A notice shall have effect as soon as the actual or deemed receipt of the notice by the addressee.
The addresses, telephone facsimile numbers and e-mail addresses of ECF Operator and the Issuer are set out in the Schedule.
18.7.1 If one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law or decision, the validity, legality or enforceability of the remaining provisions contained herein shall not be affected or impaired in any way.
18.7.2 Each Party shall, in any such event, execute such additional documents as the other party may reasonably request in order to give valid, legal and enforceable effect to any provision which is determined to be invalid, illegal or unenforceable.
- If any provision shall be void, illegal or unenforceable but would be valid and enforceable if read down, then that provision shall be read down to the extent necessary to render the provision valid and enforceable.
- Priority of Agreements
In the event of any inconsistency between the provisions of this Agreement, the Terms & Conditions, Privacy Notice, Warning Statement, and Disclosure Statement as appearing on the website (“Platform Agreements”), the (relevant part) of the Platform Agreements shall take priority and prevail over provisions of this Agreement.
No amendment, variation, revocation, cancellation, substitution or waiver of or addition or supplement to any of the provisions of this Agreement shall be effective unless it is in writing and signed by all Parties.
- Time Is of the Essence
Any time, date or period mentioned in any provision of this Agreement may be extended by mutual agreement between the Parties, but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as previously mentioned time is of the essence and shall be strictly adhered to and complied with.
- Signing In Counterparts
This Agreement may be entered into in any number of counterparts and by the Parties on separate counterparts, each of which when so signed and delivered, shall be deemed to an original and all of which shall constitute one (1) and the same instrument.