This issuer agreement is for reference only. The actual issuer agreement governing any particular issuance featured on Fundnel’s platform may differ in some respects from the below. Viewing this sample issuer agreement alone is therefore insufficient. Should you decide to raise funds through Fundnel, you should closely review the specific issuer agreement you receive for this prior to deciding whether to proceed.
This issuer agreement (“Agreement”) is made between:
A. Fundnel Technologies Sdn Bhd (Company No. 201701014864 (1229029-H)), a company incorporated with limited liability under the laws of Malaysia and having its registered address at B-26-07, The Vertical, Tower B, Jalan Kerinchi, Bangsar South, 59200 Kuala Lumpur and business address at KL Sentral 5, East Wing, Level 3, Jalan Stesen Sentral, Kuala Lumpur Sentral, 50470 Kuala Lumpur (“ECF Operator”, “Fundnel”,“us”, “we”, or “our”); and
B. You, as an issuer on the Platform (as defined herein) who has successfully applied to Fundnel to raise funds through the Platform (“Issuer” or “you”),
each, a Party and collectively, the Parties.
I. ECF Operator is the operator of the equity crowdfunding platform located at the website domain www.fundnel.com (“Platform”). The Platform seeks to assist private companies in Malaysia to raise funds by way of offering equity to the public.
II. The Issuer wishes 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 and, where applicable, as set out in applicable Platform Agreements.
NOW IT IS AGREED AS FOLLOWS :
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 all 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(b);
Completion of Conditions Precedent
has the meaning specified in Clause 8.2(a);
has the meaning specified in Clause 8.2(a);
has the meaning specified in Clause 13.4;
refers to any individual director of the Issuer;
has the meaning specified in Clause 10.1;
means the date of this Agreement;
has the meaning specified in Clause 6;
means the investor who has successfully registered as an investor on the Platform;
has the meaning specified in Clause 8;
“Minimum Fundraising Amount”
refers to the minimum campaign fundraising amount raised by the Issuer pursuant to the term sheet or as otherwise agreed between the Issuer and the Platform;
shares being offered by the Issuer to the Investor registered with the Platform;
b) Privacy Notice;
c) Disclosure Statement;
d) Risk Warnings;
e) in respect of the Issuer, the Issuer Agreement; and
f) in respect of the Investor, this Agreement.
refers to the founder(s) of the Issuer, or key management of the Issuer, as the case may be;
(a) any government in any jurisdiction, whether federal, state, provincial, territorial or local;
(b) any minister, department, officer, commission, delegate, instrumentality, agency, board, committee, statutory authority or body or organisation in which any government is interested;
(c) any non-government regulatory or supervisory authority; and
(d) any provider of public utility services, whether or not government owned or controlled,
and the expression “Public Authority” shall refer to any of them;
refers to the Securities Commission 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, 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; and
means the relevant covenants, undertakings, representations and warranties given by the Issuer or the Promoter to ECF Operator in this Agreement, including but not limited to those set out in Clause 10.
Inthis Agreement, unless the context otherwise requires:
(a) recitals, headings and underlines arefor 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 bodycorporate, partnership, association, public authority, two or more persons having a joint or common interest, or any other legal or commercial entity orundertaking;
(d) a reference to a party to a documentincludes that party’s successors and permitted assigns;
(e) any part of speech or grammatical formof a word or phrase defined in this Agreement has a corresponding meaning;
(f) reference to any statute or statutoryprovision includes a reference to that statute or statutory provision as fromtime 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 areference to that date or time in Malaysia;
(h) words denoting an obligation on a partyto do an act, matter or thing includes an obligation to procure that it be doneor words placing a party under a restriction include an obligation not topermit an infringement of the restriction;
(i) the words “hereto”, “herein”,“hereinafter”, hereinbefore”, “hereof”, “hereunder”, and other words of similarimport shall refer to this Agreement as a whole and not to any particularprovision;
(j) “including” and similarexpressions are not and must not be read or treated as words of limitation;
(k) a period of days from the occurrence ofan event or the performance of any act or thing shall be deemed to include theday on which the event happens or the act or thing is done or to be done (andshall be computed from the day immediately following such event or act orthing), and if the last day of such period is not a Business Day, then theperiod 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 thisAgreement and the Recital and Schedules shall be taken, read and construed asessential parts of this Agreement;
(m) references to this “Agreement”shall mean this Agreement as may be amended from time to time; and
(n) norule for the construction or interpretation of contracts shall apply to thedisadvantage of a party for the reason that the party was responsible for thepreparation of this Agreement or any part of it.
2. Commencement &Engagement
2.1 This Agreement shall take effect on the EffectiveDate and shall continue during theTerm unless otherwise terminated in accordance with the provisions of thisAgreement.
2.2 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’s management team (“Campaign”).
2.3 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.
3.1 During the Term, the Issuer shall not:
(a) approach,interact or communicate with any other equity crowdfunding operators aslicensed by the Securities Commission under Section 34 of the Capital Marketsand Services Act 2007 from time to time, for the prospect of being hosted ontheir platforms and this is notwithstanding that such other equity crowdfundingoperators makes the first attempt to communicate or interact with the Issuer;or
(b) carryout any fund raising exercise for other projects that are being developed or tobe 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) withany other equity crowdfunding operators as licensed by the SecuritiesCommission.
3.2 Subject to Clause 3.1 above,the Issuer shall not withoutprior written approval of ECF Operator, source for and commit to any otherfunding from any parties during the Term.
3.3 In the event that the Campaign is unsuccessful,the Issuer is restricted for a period of six (6) months from the expiry of theCampaign Period, from accepting any offer from any other equity crowdfundingoperators in Malaysia in view of being hosted on their platforms.
4.1 The Issuer hereby grants ECF Operator theright to use the Issuer’s name, trademark(s), and logo(s) on any marketingmaterial (whether in digital, physical, or other form) published by ECFOperator at any point in time, including but not limited to marketing materialsrelated to the Issuer’s fundraising activities on ECF Operator’s platform thatthe Issuer has publicly released (“ECF Operator’s Marketing Materials”).ECF Operator need not obtain the Issuer’s consent or permission prior topublishing any of ECF Operator’s Marketing Materials.
4.2 Where the Issuer publishes any marketingmaterials in relation to its fundraising activities including but not limitedto its activities on ECF Operator’s platform or relationship with ECF Operator(whether in digital, physical or other form) at any point in time during theterm of this Agreement (the “Issuer’s Marketing Materials”), the Issuershall include ECF Operator’s name, trademarks and logos in the Issuer’s MarketingMaterials. ECF Operator shall review the Issuer’s Marketing Materials beforepublication of the same. The Issuer shall comply with ECF Operator’s reasonablerequests to change any part of the Issuer’s Marketing Materials and shall notpublish or distribute any of the Issuer’s Marketing Materials without first obtainingECF Operator’s approval. Unless otherwise agreed, the Issuer shall not include ECFOperator’s name, trademarks, and logos in any marketing materials upon theexpiration or termination of this Agreement.
4.3 ECF Operator may, but is in no way obliged to,seek specific permission from the Issuer prior to using any of the Issuer’sMarketing Materials for ECF Operator’s own purposes, including but not limitedto the promotion of ECF Operator, ECF Operator’s platform and ECF Operator’sactivities.
4.4 ECF Operator and the Issuer each acknowledgethat any and all of the copyrights, trademarks and other intellectual propertyrights belonging to each party shall remain the property of the respectiveparty and shall not be used or adopted by the other party in any way at anytime during or after the expiry or termination of this Agreement except as setout herein.
The Issueragrees that ECF Operator shall be entitled at its absolute discretion tocancel, withdraw, restrict, suspend, vary or modify the use, or features of itsservices in relation to the Campaign (“CampaignServices”) (whether in whole or in part) and to vary or modify thisAgreement or such other terms and conditions (whether in whole or in part) atany time from time to time without notice and without giving any reasontherefor and ECF Operator shall not be liable to the Issuer for any loss ordamage as a result thereof.
In consideration of ECF Operator agreeing to publish and host theCampaign on the Platform (subject always to the SOP and regardless of whetherit is required by the Securities Commission or otherwise), the Issuer agrees topay ECF Operator the fees of an amount that is equivalent to (i) three (3.0)percent (%)of the total amount raised through the Platform from Investorsintroduced by the Issuer; (ii) seven (7.0) percent (%) of the total amountraised through the Platform from Investors introduced by ECF Operator; and(iii) five (5.0) percent (%) of the total co-investment made by MalaysiaCo-Investment Fund (“Fee”).The Issuer acknowledges and agrees that the Fee is subject to revision inaccordance with ECF Operator’s policies and SOP.
7. Targeted Investors
7.1 The Issuer acknowledges that ECF Operator hasa selection process for identifying potential investors based on the investmentmandate and chosen industry preference by such investors (“TargetedInvestors”). The Issuer hereby agrees to ensure that the Issuer’srepresentatives such as its Promoter, directors, or key management team will beavailable during any discussion meeting organised by the ECF Operator (subjectalways to the absolute and final discretion of ECF Operator). If required, theIssuer shall assist the ECF Operator by providing any relevant documents to theTargeted Investors upon request by the ECF Operator. As there may be discussionsessions arranged by ECF Operator with the Targeted Investors, the Issuer herebywarrants and undertakes that it shall not approach the Targeted Investors (whetherby email, telephone call, message, letter, verbal, directly or indirectlythrough intermediaries or parties) in respect of the Campaign unless ECFOperator first consented to the same in writing.
7.2 The Issuer further undertakes that during theTerm and for the six (6) months from the termination of this Agreement underClause 16, they shall not approach any Targeted Investors (whether by email,telephone call / message, letter, verbal, directly or indirectly throughintermediaries or parties) in respect of any other projects, business,proposals or prospects that may be undertaken by a company, party or vehicle inwhich:
(a) theIssuer has an interest (direct or indirect);
(b) theshareholders of the Issuer having an interest (direct or indirect); or
(c) thedirectors of the Issuer being a director of such company, party or vehicle orhaving an interest (direct or indirect).
8.1 The Issuer acknowledges and agrees that, asrequired by the Securities Commission, the funds raised from investor(s) duringthe Campaign Period (“Investors’ Funds”) shall be held in a trustaccount established and maintained by ECF Operator with a trustee companyincorporated under the Trustee Act 1949 (“Trust Account”).
8.2 Release of Investors’ Funds for SuccessfulCampaign
(a) The Issuer acknowledgesand agrees that in the event of a Successful Campaign, the obligation of theInvestor to subscribe for the Offer Shares, and ECF Operator’ obligation to releasethe Investors’ Funds (net of the Fee and any other charges, if applicable) tothe Issuer is conditional upon and subject to the following being obtained orfulfilled, as the case may be, (collectively called the “Conditions Precedent”):
(i) therebeing no material adverse change (as determined by ECF Operator) in the prospects,product / services, business, operations or financial condition of Issuer andreceipt of the letter issued by the Issuer to ECF Operator confirming thatthere is no such material adverse change;
(ii) expiryof 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 allowthe Investor to opt-out or proceed with investing in the Issuer and Campaign (“Cooling-off Period”);
(iii) the execution by and between the Issuer and allsuch Investor(s) of any and all definitive transaction documents with respectto Campaign;
(iv) receiptof the written approval by the authorised representative or director of theCompany for the allotment and issue of the Offer Shares to the Investors who participatedin the Campaign;
(v) ECFOperator being satisfied that there is no significant change in the economic,political or investment environment which may affect the proposed investment bythe Investor in the Issuer or the financial or trading position or prospects ofthe Issuer prior to the Completion Date;
(vi) whereapplicable, the completion of the legal, technical, business and financial duediligence exercise by ECF Operator on the Issuer, including the implementationby the Issuer (to the satisfaction of ECF Operator) of all recommendations inrespect thereof from ECF Operator, and the results of such exercise beingsatisfactory to ECF Operator;
(vii) whereapplicable, the Issuer and its representatives satisfying the due diligence enquiriesas required by the trustee of the Trust Account; and
(viii) anyother conditions deemed appropriate by ECF Operator.
The Conditions Precedent shall be fulfilled within fourteen (14) calendar days after the expiry of the Campaign Period andmay 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”).
(b) Completion of the allotment and issue of the Offer Shares shall occur at the office of the Issuer in accordance with Clause 9.2 however subjectalways to Clause 9.3, 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”).
9. Refund of Investors’ Funds for Unsuccessful Campaign
9.1 The Issuer further acknowledges and agrees thatin the event that the Campaign is unsuccessful, ECF Operator shall be entitledto make a refund from the Investors’ Funds to each Investor who hasparticipated in the Campaign, in the amount equivalent to the monies investedby the respective Investor in the Campaign.
9.2 Completion of the Subscription of Offer Shares
(a) Subject to Clause9.3(Rescission) below, Completion shall occur at the Issuer’s principal place ofbusiness (or at such other place as designated by ECF Operator including the officeof the Issuer’s company secretary (“Company Secretary”) on or before theCompletion Date.
(b) Subject to thefulfilment of the Conditions Precedent, the Issuer shall, or the Promoter shallprocure and ensure that the Issuer shall cause the following matters to occuron or before the Completion Date:
(i) whereapplicable, amendment to the Constitution of the Issuer to facilitate the issueof the Offer Shares to the Investors; and
(ii) theallotment and issue of the Offer Shares upon the terms of this Agreement and theSOP,
each of which must be approved by theshareholders of the Issuer by the passing of a members’ resolution in a formand content acceptable to ECF Operator.
(c) On or before theCompletion Date, the Issuer shall, or the Promoter shall procure and ensurethat the Issuer shall convene a meeting of the Directors or procure aDirectors’ circular resolution to pass the appropriate resolutions authorising:
(i) theallotment and issue of the Offer Shares to the Investors;
(ii) theregistration of each and every Investor in the register of members of theIssuer as the holder of the Offer Shares on the terms and conditions of thisAgreement and the SOP; and
(iii) theaffixing of the common seal unto the share certificates representing the OfferShares and the issue of the corresponding share certificate(s) to each Investor.
(d) No later than theCompletion Date, ECF Operator shall effect payment for the Offer Shares (lessthe deductions by ECF Operator for the Fee and other costs as described inClause 18 (Costsand Expenses)) to the Issuer and in exchange for which the Issuer shall instructthe Company Secretary to each of the relevant Investors and a copy to the ECFOperator:
(i) theshare certificate representing the corresponding Offer Shares; and
(ii) certifiedtrue copies of the resolutions referred to in Clauses (b)and Clause (c).
The Issuer hereby agree and acknowledges thatit is the responsibility of the Issuer to ensure compliance of the provisionsunder this Agreement. The ECF Operator may, at its sole and absolute discretion,facilitate the Issuer with third party service providers in view of assistingthe Issuer in completing the transaction.
(a) If on or beforethe Completion Date:
(i) anyof the documents required to be delivered to ECF Operator are not forthcomingfor any reason;
(ii) anyinformation, data 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 suchomission was made known to ECF Operator, ECF Operator would not have agreed tohost the Issuer on the platform and entered into this Agreement;
(iii) theIssuer or the Promoter breach any of the Warranties or any provisions of thisAgreement;
(iv) anyof the Warranties given by the Issuer or the Promoter in this Agreement isfound to be untrue, accurate, false or misleading;
(v) ifthe Issuer has bank borrowings or facilities made available by the financialinstitutions or other lending company as licensed under the Malaysian laws, theIssuer defaulting in its repayment obligations of such bank borrowing or failingto service the facilities, or such bank borrowing or facilities are terminated orrecalled for any reason whatsoever;
(vi) anyPublic Authority commences any litigation, arbitration or prosecutionproceedings against the Issuer or the Promoter; or
(vii) theECF Operator determines that there is an occurrence of any “material adversechange” as imposed by the Securities Commission’s Guidelines on RecognisedMarkets therein,
then, ECF Operator shall be entitled,at its absolute and final discretion, to elect any of the following:
(a) toeffect completion of the investment and subscription of the Offer Shares (withoutprejudice to its rights and remedies against the Issuer or Promoter, includingthe right to claim damages) so far as practicable having regard to the defaultswhich have occurred; or
(b) tofix a new day for completion (not being more than 14 calendar days after theoriginal Completion Date), in which case the foregoing provisions of thisClause shall apply to completion as so deferred; or
(c) torescind this Agreement without liability on its part, in which event the Issuershall pay the costs and expenses agreed to be borne by the Issuer pursuant to Clause 18which amount shall be paid within 15 Business Days after the notice ofrescission from ECF Operator, and thereafter, this Agreement shall terminateand be null and void and of no further effect whatsoever and none of theParties shall have any claims against the other hereunder for costs, damages,compensation or otherwise, save in respect of any antecedent breach of theterms herein.
(b) At any timeduring the Term, in the event that Issuer wishes to rescind this Agreement forany reason by providing a written notice to the ECF Operator stating itsintention to do so, the Issuer hereby agree and acknowledges that the ECFOperator shall be entitled to the termination fees of an amount that isequivalent to two (2.0) to seven (7.0) percent (%) of the Minimum FundraisingAmount raised by the Issuer, being the termination penalty which will beinvoiced by the ECF Operator to the Issuer.
10. Representations, Warranties and Undertakings
10.1 The Issuer and Promoter hereby jointly and severally undertake to provide ECF Operator and its officers, advisor, agents 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 ECFOperator (“Disclosure Documents”).
10.2 The Issuer and Promoter hereby jointly and severally warrant and undertake to ECF Operator:
(a) that by virtue ofentering into this Agreement, the Issuer will not be in breach of any expressor implied terms of any contract with or of any other obligation to any thirdparty binding upon the Issuer or the Promoter;
(b) that the Issuerand the Directors have not committed and are not in breach of any of the lawsof Malaysia or any country with jurisdiction over the affairs of the Issuer, inrelation to the affairs of the company and having an adverse effect on the affairsof the company;
(c) that they have fulllegal right, power and authority to execute, deliver and perform their respectiveobligations under this Agreement and all such other documents and instrumentsas specified or referred to in this Agreement;
(d) that there is noprovision in the Constitution that has been or would be contravened by theexecution and delivery of this Agreement;
(e) that allinformation provided to ECF Operator pursuant to this Agreement (and, inparticular, information that is necessary or relevant to the performance of ECFOperator’s obligations hereunder) are true, complete and accurate, and torectify any error or defect of any information promptly upon discovery of thesame;
(f) that they willcarry out its duties and obligations under this Agreement in compliance withall applicable laws and regulations;
(g) they are notinsolvent and are not subject to any insolvency procedures or proceedings;
(h) that they haveneither been served with any notice or order restricting its businessactivities nor subjected to any disciplinary measures imposed by any governmentagency or regulator in any country in which they carry on business;
(i) that they have,in the event of disaster, adequate policies and procedures in place to ensurethe continued performance of its obligations under this; and
(j) all therepresentation, warranties and undertakings made under this Agreement are true,complete and accurate at the time of this Agreement, and that in the event ofany such representations, warranties and undertakings ceasing to be true,complete or accurate, either the Issuer or Promoter as relevant will give ECFOperator written notification of this immediately upon becoming aware of thesame.
10.3 Where the Campaign is successful, the Issuer orthe Promoter warrants that the Investors’ Funds shall be utilised by theCompany exclusively and in accordance with the use of proceeds as conveyed toECF Operator and published on the Platform.
10.4 The Issuer confirms that ECF Operator’sagreement to enter into this Agreement is made on the basis of and in relianceon:
(a) the truth,completeness, and accuracy of the representations, warranties and undertakingsset out in Clause 10.1 and Clause10.2; and
(b) the Disclosure Documentsprovided to ECF Operator are true and accurate as if given afresh immediatelybefore the Successful Campaign.
10.5 If the Campaign is achieved, the Issuer shalladhere to the corporate governance standard set by ECF Operator. This shallinclude, but is not limited to, updating investors:
(a) within 2 weeks ofthe successful completion of a fundraising campaign via email, of:
(i) keydetails of the fundraising round;
(ii) thecorporate reporting standards that the Issuer will comply with going forward;namely, quarterly reporting; key financials; new product launches or relevantupdates;
(iii) updatesabout the Issuer’s growth strategies;
(iv) discussionof the Issuer’s management; and
(v) dateof the Issuer’s next Annual General Meeting or extraordinary general meeting;
(b) every quarter on the performance of the company and every month onmonthly revenue (revenue-sharing);
(c) when any proceedsare utilised; and
(d) any other disclosures or updates as the ECFOperator may impose against the Issuer from time to time.
11. Intellectual Property Rights, Warranties andUndertakings
11.1 The Issuer herein grants to ECF Operator alicense to use the Issuer’s logos and trademarks (the “Brands”) for thepurposes of this Agreement, including as outlined in Clause 4.2 above.
11.2 Each Party acknowledges that any and all ofthe copyrights, trademarks, and other intellectual property rights, includingthe 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.
12. Standard of Duty
TheIssuer may at any time make specific requests to ECF Operator about ECFOperator’s performance of the Issuer services but has no right to, and shallnot, control the manner, or determine any aspect, of ECF Operator’s performanceof 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 tobe carried out for the Issuer. In the course of performing the CampaignServices, ECF Operator shall at all times remain an independent contractor andnot an employee, agent, joint venture, or partner of the Issuer. Nothing inthis Agreement shall be interpreted or construed as creating or establishingthe relationship of employer and employee between the Issuer and ECF Operator,and the Issuer therefore shall not take any action or provide ECF Operator withany benefits or commitments inconsistent with ECF Operator’s status as anindependent contractor.
13.1 Save as otherwise required by any written law,the Issuer agrees and undertakes that it will observe the following:
(a) strictly keep and maintain confidentiality onall Confidential Information (as defined below);
(c) where applicable,not make copies of documents or other materials containing the ConfidentialInformation without ECF Operator’ prior written consent, and only to theminimum extent necessary for its performance hereunder.
13.2 NotwithstandingClause 13.1 above, ECFOperator acknowledges and agrees that the Issuer may disclose any ConfidentialInformation to its employees, for thesole purpose of performing its obligations hereunder and the Issuer shallensure and procure that its employees are made aware of the confidentialityobligations of the Issuer under this Agreement and comply to such obligations.
13.3 In the event of any unauthorised disclosure oruse of any Confidential Information occurring through a disclosure made to the Issuer,the Issuer shall use all reasonable endeavours to assist ECF Operator inrecovering and preventing the use, dissemination or other disposal of suchConfidential Information.
13.4 Except to the extent such information ispublic knowledge by way of publishing the Campaign on the Platform or becomespublic knowledge other than by breach of this Agreement, “ConfidentialInformation” of ECFOperator shall mean for the purposes of this Agreement:
(a) information in relation to ECF Operator or anyof its affairs, business or systems or methods of operating the Platformincluding, without limitation, the systems, information relating to itsservices, methods, systems, strategies or technical operations;
(b) information confidentialor secret or proprietary to ECF Operator or which otherwise gives ECF Operatoran advantage over its competitors;
(c) informationotherwise designated as confidential or secret by ECF Operator;
(d) the terms andconditions of this Agreement, the relationship between the Parties, and anynegotiations or discussion between the Parties;
(e) trade secrets; and
(f) informationimparted in confidence by ECF Operator to the Issuer regardless of whether suchinformation is relevant in the performance of the obligations of the Partiesunder this Agreement.
13.5 Without limiting the foregoing, “Confidential Information” shallinclude but is not limited to statistics, data, manuals, flow charts, draftsand diagrams in all forms of storage or representation including, but notlimited to documents, loose notes, diaries, memoranda, drawing, photographs,electronic storage and computer printouts.
13.6 The Issuer acknowledges that the value of theConfidential Information and the Issuer’s undertaking contained in this Clauseis such that an award of damages or an account of profits may not adequatelycompensate ECF Operator in the event of a breach of this Agreement by theIssuer. The Issuer acknowledges that without in any way compromising ECFOperator’ right to seek damages or any other form of relief in the event of abreach of this Agreement, ECF Operator may seek and obtain an ex-parteinterlocutory and final injunction to prohibit or restrain the Issuer or itsemployees, agents or sub-contractors from any breach or threatened breach ofthis Agreement.
13.7 This Clause shall survive termination of thisAgreement.
The Issuer shall fully indemnify and hold eachof ECF Operator, its employees, servants and third party service providers harmlessfrom and against any and all actions, proceedings, liabilities, claims,demands, losses, damages, charges, costs (including legal costs of defending orsettling any action, claim or demand) and expenses which ECF Operator, itsemployees, servants or third party service providers may at any time and fromtime to time, sustain, incur or suffer by reason of or arising out of or in thecourse of:
(a) the breach of theIssuer of its obligations under this Agreement; or
(b) any act oromission on the part of the Issuer.
15. Limitation of liability
15.1 The Issuer hereby agrees that ECF Operator andits affiliates (and the directors and employees of ECF Operator and itsaffiliates), whether jointly or singly, shall not be liable for, and Issuershall not claim against ECF Operator or its affiliates to recover, any loss,liability, expense or cost incurred that arises directly or indirectly out ofthe performance by (or on behalf of) ECF Operator or its affiliates of the CampaignServices, except to the extent that any loss, liability, expense or cost isproven by the final judgment of a court of competent jurisdiction to haveresulted directly and solely from the wilful default or gross negligence of ECFOperator (or the said directors or employees). ECF Operator will not be liablefor the acts, defaults or omissions of any third party, including that of anyagents or sub-contractors.
15.2 In all cases, the liability of ECF Operator orits affiliates, if any, will be limited only to the direct loss suffered by theIssuer, and, even then, only to the extent that such loss was reasonablyforeseeable and is caused by its direct, act, default or omission. Under nocircumstances will the liability of ECF Operator or its affiliates extend toany consequential loss or loss of profit, howsoever arising, whether or notsuch loss was foreseeable and whether it was suffered by the person by whom ECFOperator or its affiliates is instructed or any third party.
15.3 ECF Operator and its affiliates shall not beheld responsible for any loss, liability, expense or cost arising out of the Issuerrelying on the use of its services rendered before changes in the applicablelaws, rules and regulations or policies (or the interpretation thereof) orchanges in the Issuer’s circumstances.
15.4 The above indemnities and limitations onliability 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 documentationthat ECF Operator prepares is provided without any representations or any kindof warranties whatsoever (whether express or implied by law). ECF Operatorexpressly disclaims to the fullest extent permitted by law all express, impliedand statutory warranties, including without limitation, the warranties as tofunctionality, operability, accessibility, accuracy, correctness, reliability,updatedness, timeliness, satisfactory quality, merchantability, fitness for a particularpurpose, and non-infringement of proprietary rights. Neither ECF Operator, norany of its directors, officers, employees, members, representatives,affiliates, agents, parent(s), subsidiaries, successors and assigns shall haveany liability whatsoever for any expenses, losses or damages arising out of orin connection with, whether directly or indirectly, the functionality,operability, accessibility, accuracy, correctness, reliability, updatedness,timeliness, satisfactory quality, merchantability, fitness for a particularpurpose (or lack thereof) of and the use of or reliance on all or any part of ECFOperator’s Marketing Materials or any documentation that ECF Operator prepares.
17. Termination of Agreement
17.1 This Agreement shall be terminated upon theearlier of the expiry of the Term or the completion of the Client’s Campaignon ECF Operator’s platform.
17.2 Such termination shall be without prejudice tothe terminating Party’s right of action against the other Party in respect ofthe latter Party’s breach of any of the provisions of this Agreement.
17.3 Events of Default
If the Issuer:
(a) commits any breach of its obligations under thisAgreement or if such breach is remediable, fails to remedy such breach withinthree (3) Business Days from the service of a written notice by ECF Operatorcomplaining of such breach;
(b) provides anymisleading, inaccurate, or false statement, information, data or documents orfrom which there is an omission;
(c) becomes insolventor unable to pay its debts (if applicable); or
(d) goes intoliquidation or is wound up either compulsorily or voluntarily (except in thecase of a voluntary liquidation for the purpose of reconstruction oramalgamation),
then and in any such event, ECF Operator shallbe entitled to terminate this Agreement immediately by written notice to the Issuerand the termination is effective from the date of such written notice.
17.4 Termination of this Agreement shall be withoutprejudice to the rights of ECF Operator against the Issuer for breaches immediatelyprior to such termination. All obligations under this Agreement that areof a continuing nature shall survive termination.
18. Costs and Expenses
The Issuer shall bear the following costs:
(a) all costs and expenses related to the legal, technical, financial and business due diligencereview, training and valuation undertaken by the third party service providers engaged by the Issuer directly or the ECF Operator to provide services to theIssuer;
(b) the stamp duty payable on this Agreement; and
(c) the fees, cost and charges imposed by the Company Secretary.
For avoidance of doubt, the costs and expenses described in this clause shall be borne and payable by the Issuer even if its Campaign is unsuccessful.
19. General Terms
19.1 Nothing contained in this Agreement shallconstitute or be deemed to constitute or create any association, partnership,joint venture, or the relationship of principal and agent or master andservant, or employer and employee between the Parties hereto or any of theirrelated corporations, affiliates, officers, employees, agents orsub-contractors, or to provide the Issuer or Promoter with the right, power orauthority, whether express or implied, to bind or commit ECF Operator or createany duty or obligation on behalf of ECF Operator.
19.2 This Agreement sets out the entire agreementand understanding of the Parties in respect of the subject matter of thisAgreement and supersedes and cancels in all respects all previous agreements,if any, made between the Parties in respect of the subject matter herein.
19.3 The expiration or termination of thisAgreement however arising shall not operate to affect such of the provisions ofthis Agreement as are expressed to operate or have effect after then and shallbe without prejudice to any accrued rights or remedies of the Parties.
19.4 In the event of any dispute arising from thisAgreement, such dispute will be attempted to be resolved by any of the ECFOperator’s senior management team with the aim of achieving an amicable solution. Unresolved disputes will be referred to our oversight body which consists of the ECF Operator’s Board of Directors, Chief Executive Officer and such other person or persons deemed appropriate by the Platform to be part of the oversight body. If any dispute remains unresolved, the parties shall first resolve any dispute in a good faith manner and bring any dispute before arbitration in Malaysia in accordance with Arbitration Rules of the Asian International Arbitration Centre (AIAC). The parties further agree that following the commencement of arbitration, they will attempt in good faith to resolve the dispute through mediation at the AIAC, in accordance with the AIACMediation Rules protocol of the time being in force before having recourse to litigation.
19.5 The laws of Malaysia shall govern the validity,construction, and performance of this Agreement.
19.6 Any notice to be given by a Party under thisAgreement 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, Promoter, andIssuer are set out in the Schedule.
19.7 If one or more of the provisions of this Agreementshall be invalid, illegal or unenforceable in any respect under any applicablelaw or decision, the validity, legality or enforceability of the remainingprovisions contained herein shall not be affected or impaired in any way.EachParty shall, in any such event, execute such additional documents as the otherparty may reasonably request in order to give valid, legal and enforceableeffect to any provision which is determined to be invalid, illegal orunenforceable. If any provision shall be void, illegal or unenforceable butwould be valid and enforceable if read down, then that provision shall be readdown to the extent necessary to render the provision valid and enforceable.
19.8 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.
19.9 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.
19.10 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.