This investor agreement ("Agreement") is made between:
- iPivot Sdn Bhd, a private company limited by shares incorporated under the Companies Act 2016 of Malaysia with its business address at SO 17-1, Menara 1, Strata Office KL Eco City, No.3, Jalan Bangsar, 59200 Kuala Lumpur ("the Company, we, our or us");
- (2)You, being an individual or a body corporate, who is a user of the Platform (as defined hereunder) and who wishes to consider investing in an Issuer (as defined hereunder) by subscription of shares in response to an Offer (as defined hereunder) published on the Platform ("Investor" or "you") .
- The Company is registered with the Securities Commission Malaysia as a recognized market operator for equity crowdfunding. The Company is the operator of the equity crowdfunding platform hosted at www.ipivot.biz (the "Platform"). The Platform seeks to assist private companies in Malaysia to raise funds by way of offering equity to the public.
- (B)The Company and the Investor have agreed to enter into this Agreement to set out the terms and conditions in relation to the Investor's ability to use and invest on the Platform. This Agreement, together with the Terms and Conditions and Privacy Notice (each of which are defined hereunder), shall govern the Investor's use of the Platform.
- This Agreement constitutes a binding contract between the Company and you.
- This Agreement shall be effective when you tick the relevant box on the Platform confirming that you have read and understood the terms and conditions and agree to be bound by the terms of this Agreement.
2. DEFINITIONS AND INTERPRETATIONS
In this Agreement, unless the context otherwise requires, the following expressions shall have the meanings set forth opposite such expressions:-
Amended Investor Agreement - has the meaning given to it in Clause 19 of this Agreement;
Angel Investor - has the meaning given to it in Clause 5.1 of this Agreement;
Business Day - means a day (excluding Saturdays, Sundays and public holidays) on which government offices and banks are open for business in Kuala Lumpur or Selangor;
CMSA - means the Capital Market and Services Act 2007;
Conditions Precedent - has the meaning given to it in Clause 7 of this Agreement;
Cooling-Off Period - has the meaning given to it in Clause 7 of this Agreement;
Declaration - has the meaning given to it in Clause 5.3 of this Agreement;
Foreign Investor - means an Investor who accesses an Offer from outside Malaysia or who is not a Malaysian citizen;
Guidelines - means the Guidelines on Recognised Markets issued by the SC, as may be amended from time to time;
Investor - has the meaning given to it in the Recitals and includes a Registered Investor;
iPivot Nominees - means iPivot Nominees Sdn Bhd;
Issuer - means a person or company who is hosted on the Platform to make an Offer;
Issuer Agreement - has the meaning given to it in Clause 12 of this Agreement;
Nominee Agreement - has the meaning given to it in Clause 8.1 of this Agreement;
Offer - means an invitation or offer to subscribe or bid for shares in an Issuer through the Platform;
Offer Materials - means all information relating to the Offer and the Issuer, including but not limited to the ownership and management structure, assets and liabilities, profitability, business plan and any other relevant information published on the Platform;
Offer Period - means the period of time when the Offer is listed on the Platform and open to the Investors for bidding;
Platform - has the meaning given to it in the Recitals and, for the avoidance of doubt, includes the Website;
Qualified Investor - has the meaning given to it in Clause 4.1 of this Agreement;
Registered Investor - has the meaning given to it in Clause 5.1 of this Agreement;
Registered User - has the meaning given to it in Clause 5.2 of this Agreement;
Retail Investor - has the meaning given to it in Clause 5.1 of this Agreement;
RM - means Ringgit Malaysia, the lawful currency of Malaysia;
SC - means Securities Commission Malaysia;
Sophisticated Investor - has the meaning given to it in Clause 5.1 of this Agreement;
Terms and Conditions - means the terms and conditions published on the Platform;
Trust Account - has the meaning given to it in Clause 7 of this Agreement; and
Website - means www.ipivot.biz and/or direct sub-domains, subpages, redirected sub-domains, subpages and any other web display pages directly and indirectly correlated to www.ipivot.biz.
- The headings in this Agreement are inserted for convenience of reference only and shall be ignored in construing this Agreement;
- All references to a statute or statutory provisions shall include that statute or statutory provisions as from time to time amended, extended, re-enacted or consolidated whether before or after the date of this Agreement;
- All references to this Agreement shall include this Agreement as amended or modified;
- All references to one gender include all genders and references to the singular include the plural and vice versa;
- All references to:
- a "person" shall include any natural person, company, limited liability partnership, partnership, business trust or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns; and
- a "company" shall include any company, corporation or body corporate, wherever incorporated;
- a reference in this Agreement to "including", "include" and other similar expressions shall not be construed restrictively but shall mean "including without prejudice to the generality of the foregoing" and "including, but without limitation";
- there shall be no presumption that any ambiguity should be construed in favour of or against any party solely as a result of such party’s actual or alleged role in drafting this Agreement or any part of it;
- any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done; and
- references to a date or time of day is a reference to the Malaysian time.
3. PURPOSE OF THIS AGREEMENT AND RELATIONSHIP WITH OTHER AGREEMENTS
- Pursuant to the Guidelines, we are required by law to disclose to you various information relating to equity crowdfunding and our services made available through the Platform.
- The information in this Agreement is not exhaustive and you must also read the following documents which are available on our Platform:
- Our Terms and Conditions, which can be found Here;
- Our Privacy Notice, which can be found Here; and
- Other useful information can be found at our FAQ webpage Here.
- You acknowledge that, in addition to the provisions of this Agreement, you have also read and agree to be bound by the Terms and Conditions and Privacy Notice.
4. THE SERVICES WE OFFER
- The Company seeks to assist private companies in Malaysia to raise funds through the Platform by way of offering shares to the public for subscription by Investors. Subject always to the Terms and Conditions and Privacy Notice, we will maintain a database of Investors who will receive information on the Offers made by Issuers.
- Issuers seeking to raise capital may approach us, or they may be approached by us, with a prospect of them offering their shares through the Platform to Investors.
5. HOW TO BECOME AN INVESTOR?
5.1. Eligibility Criteria for Investors
- Individual Investors must be at least 18 years old.
- The sections on the Platform that relate to the viewing of Offers or to making investments in the Issuers are available only to the following:
(collectively, "Qualified Investors"),
- Sophisticated Investors;
- Angel Investors; and
- Retail Investors;
who are registered on the Platform in accordance with Clause 5.2 below.
- "Sophisticated Investor" refers to any person who falls within any of the categories of investors set out in Part 1, Schedule 6 and 7 of the CMSA, including but not limited to the following:
- an individual whose total net personal assets or total net joint assets with his or her spouse, exceed RM3,000,000.00 or its equivalent in foreign currencies, excluding the value of the individual’s primary residence;
- an individual who has a gross annual income exceeding RM300,000.00 or its equivalent in foreign currencies in the preceding 12 months;
- an individual who, jointly with his or her spouse, has a gross annual income exceeding RM400,000.00 per annum or its equivalent in foreign currencies in the preceding 12 months;
- an individual whose total net personal investment portfolio or total net joint investment portfolio with his or her spouse, in any capital market products exceeds RM1,000,000.00 or its equivalent in foreign currencies;
- a company that is registered as a trust company under the Trust Companies Act 1949 which has assets under management exceeding RM10,000,000.00 or its equivalent in foreign currencies;
- a corporation that is a public company under the Companies Act 2016 which is approved by the SC to be a trustee under the CMSA and has assets under management exceeding RM10,000,000.00 or its equivalent in foreign currencies;
- a corporation that is carrying on the regulated activity of fund management solely for the benefit of its related corporations and has assets under its management exceeding RM10,000,000.0 or its equivalent in foreign currencies; or
- a company with total net assets exceeding RM10,000,000.00 or its equivalent in foreign currencies based on the last audited accounts of the company.
- "Angel Investor" refers to an individual who has met all the criteria below:
- an individual who is a tax resident in Malaysia; and
- whose total net personal assets exceed RM3,000,000.00 or its equivalent in foreign currencies; or
- whose gross total annual income is not less than RM180,000.00 or its equivalent in foreign currencies in the preceding 12 months; or
- who, jointly with his or her spouse, has a gross total annual income exceeding RM250,000.00 or its equivalent in foreign currencies in the preceding 12 months.
- "Retail Investors" are all other individuals above the age of 18 and corporations or partnerships that are legally able to invest in business and who falls outside the definition of sophisticated investors and angel investors.
- Save for the eligibility criteria imposed by the SC as stated above, we do not impose any other minimum net worth, earnings or other financial thresholds to be met, although the investment opportunities available on the Platform are designed for Investors who are financially aware and who can absorb losses in light of the risky nature of investments in the Issuers. All Investors, whether Foreign Investors or otherwise, are strongly encouraged to seek professional advice as to their rights and obligations in relation to any Offer and in relation to any country where they may be a resident or from which the Platform may be accessed.
5.2. Registration Process
- In order to be eligible to make investments in the Issuers through the Platform, you must apply and be accepted as a registered investor of the Platform by the Company (""Registered Investor").
- In order to be registered as a Registered Investor:
- You will need to sign up and create an account on the Platform. Once we have verified your email address, you will be asked to set up your profile which will require you to provide relevant details including, without limitation, your name, date of birth, contact number and address. Upon successfully setting up your profile, you will be registered as a user of the Platform ("Registered User").
- In order for you to be registered as a Registered Investor, you will be required to self-declare the category of Qualified Investor which you belong to as determined by the criteria set out in Clause 5.1 (Eligibility Criteria for Investors) above and in accordance with Clause 5.3 (Investors’ Declaration) below. This will determine your investment limits. Upon reviewing your details, we will notify you as to whether or not your registration to become a Registered Investor is successful. We may, at our sole and absolute discretion, decline to accept any Registered User as a Registered Investor or attach conditions to our acceptance of any such registration without providing any reason whatsoever for our decision.
- Once you are successfully registered as a Registered Investor, you will be able to view details of current Offers.
- [If you are an individual signing up on behalf of an investor who is a corporation or a trust company, by signing up for an account, you confirm that you are the duly authorised representative of the corporation or trust company and you further warrant that you will provide us with the documentation we require for onboarding purposes.]
- You hereby agree to allow us and/or our nominated third party to carry out any identity, credit and fraud checks on you and/or the corporation or trust company that you are singing up on behalf for and, where appropriate, its officers, directors, employees and representatives who shall promptly submit their identity documents, bank details and any other information and/or documents that we may reasonably request.
- You shall ensure that only you shall have access to the Platform by using your own login details. Any login to the Platform by using your login details shall be deemed to have been made by you and, accordingly, you shall be responsible for all information and activities carried out on the Platform by anyone using your login details.
- You shall immediately notify us in writing of any breach of security, loss, theft or unauthorised use of your login details.
- You shall not misuse your login details to the detriment of the Company and/or the Platform and shall only use and access the Platform for purposes contemplated by this Agreement and for no other purposes. You hereby agree not to adapt or circumvent the systems in connection with the Platform nor access the Platform for any unauthorised, malicious, illegal or fraudulent purpose. We reserve the right at our sole and absolute discretion not to act on any instructions received from you where we have reasonable grounds to believe or suspect that there has been any unauthorised, malicious, illegal or fraudulent activity on your part.
- As part of the process of an investment, the Company will request and collect your personal information to be processed by us on your behalf to complete your participation in an Offer and for the purposes as set out in the Privacy Notice. This information shall include but is not limited to the following:
- full name, and any previous names;
- residential address;
- date of birth;
- contact number;
- country of residence;
- identity card and/or passport details; and
- bank account details (in your own name / joint account holder).
- Unless otherwise required by applicable laws, your personal information will be kept confidential. You hereby consent and authorize us pursuant to the Personal Data Protection Act 2010 to disclose your personal data to third parties for the purposes as set out in the Privacy Notice or as we otherwise deem necessary and appropriate.
- Upon receipt of your personal information and relevant documents, we may undertake our internal verification process as part of our obligation and compliance with the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 and other relevant regulations and guidelines. You shall promptly furnish us with such other information in relation to the source of funds which you seek to invest either generally or in any particular Offer, upon our request at any time and from time to time.
5.3. Investor's Declaration
- You shall declare your own Qualified Investor category and any investment made on any equity crowdfunding platform for the immediately preceding 12 month period before making an investment ("Declaration"). The responsibility of truthfulness in relation to the Declaration lies solely on you.
- The Company shall not be held responsible to any person for any false Declarations made by you and you shall indemnify and keep indemnified in full the Company against all losses, costs, expenses, damages, penalties, fines, liabilities or claims of whatsoever nature that may be suffered or incurred by the Company as a result of any false declarations made by you.
- In addition, prior to making any investment through the Platform, you may be required to provide any information and/or supporting documents that provide proof that you are a Sophisticated or Angel Investor.
- Your failure to provide any information and documentation requested to confirm your status as a Sophisticated or Angel Investor shall be cause for us to immediately discontinue your use of the Platform.
5.4. Suspension, Removal and Termination
- The Company reserves the right at our sole and absolute discretion, at any time and from time to time, to prevent, stop and/or disallow by any means, you from continuing to use the Platform without providing any reason whatsoever and/or to de-register and deactivate your account.
- Without limiting the generality of the foregoing, the Company reserves the right to refuse, suspend or cancel your registration as a Registered User or Registered Investor at any time if it has reasonable grounds to be concerned or suspicious of any of the following:
- where there is doubt as to whether you are at least 18 years old;
- whether you have provided true and accurate information in relation to your personal details and all other dealings with us;
- where the information provided by you cannot be verified or confirmed;
- non-satisfactory results of our anti-money laundering and other legal compliance checks on you;
- where you have breached any of your obligations under this Agreement or the Terms and Conditions;
- where there is doubt as to whether you are an undischarged bankrupt or being a body corporate, being wound up or liquidated; or
- such other matters which we regard in our sole and absolute discretion may affect your eligibility as an Investor.
- For the avoidance of doubt, the revocation of your status as a Registered Investor shall not result in a termination of contract or other agreement to which you are a party at that time.
5.5. Foreign Investor
- Our services and the Platform are designed for persons who are residents in Malaysia. Foreign Investors are solely responsible for ensuring compliance with all laws in their country of residence or the country from which they may access the Platform and the Company accepts no responsibility for any breach of such laws by Foreign Investors.
- Most overseas countries have securities laws which regulate the offering of financial products such as offering of shares to the public. No Offer is made through the Platform or may be accepted by any Foreign Investor if to do so would constitute a breach of any applicable laws, rules or regulations of any governmental authority or where the Company is not authorised to provide such information or services through the Platform. Accordingly, any such Offer or any subscription for or acquisition of shares as a result of such Offer will be void and of no effect in relation to that country and persons subject to its laws.
5.6. 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.
- A Retail Investor is allowed to invest a maximum of RM5,000 per Issuer with a total investment amount not exceeding RM50,000 within a 12 month period.
- The investment limits specified in this Clause 5.5 (Investment Limits) are applicable to local and Foreign Investors.
6. THE INVESTMENT PROCESS
- When an Issuer is ready to make its Offer to Investors, the Company will arrange for the Offer Materials to be uploaded to the Platform. Registered Investors will be able to browse and review the Offer Materials.
- You will be able to seek further information and ask questions of the Issuer through the forum on the Platform. Issuers may also make themselves available for meetings with Investors, whether in person or by conference call or video conference or through the Company’s dedicated engagement events such as Crowd Talk or Ignite series of events. All Investors proposing to invest in an Issuer shall generally have access to the same information and at the same levels of disclosure.
- The Offers listed on the Platform are open to Investors for bidding during the Offer Period only. For the avoidance of doubt, as an expression of your interest to invest in the Issuer, you may commit to making a payment or deposit prior to the listing of the Offer on the Platform. You shall confirm your investment based on the information on the Issuer and upon such terms and conditions for such Offer published on the Platform during the Offer Period.
- Each Offer will lapse upon the expiry date and time published on the Platform or may be extended at the option of the Company upon serving a notice to Investors via the Platform before the expiry date. The Offer Period may be terminated earlier than the scheduled expiry date and time upon the occurrence of any of the following:
- the Issuer has received bids amounting to its minimum targeted amount of investment sought to be raised; or;
- the Issuer is required to withdraw its Offer from the Platform as a result of the Company becoming aware of matters adverse to the interests of the Investors.
7. PAYING FOR YOUR SHARES AND SELECTION OF BIDS FOR OFFERS
- The Offer terms will typically contain obligations about the timing of settling the Share Payment. After you have made your bid in response to an Offer on the Platform, you will be directed to the payment page.
- You may select the following payment methods in respect of the Share Payment:
- E-payment via MOL Pay or such other available payment system or payment gateway on our Platform from time to time; or
- Manual payment via cash or cheque deposit.
- If you wish to make your Share Payment utilising the e-payment via the available payment systems or payment gateways, you will be required to confirm your bank account details and accept our refund policy. Once payment is confirmed, the Company will provide a transaction receipt to you.
- For manual payments, you must transfer the share payment to the designated account of the Company within five (5) Business Days and email the bank-in slip to the Company at email@example.com. Once payment is confirmed, the Company will provide a transaction receipt to you.
- The moneys received from you will be held by the Company in a separate trust account maintained at a licensed financial institution operating in Malaysia ("Trust Account"). The moneys paid by you into the Trust Account will be released to the Issuer by the appointed trustee only when the following conditions have been satisfied:
(collectively referred to as "Conditions Precedent").
- the minimum targeted amount sought to be raised by the Issuer has been met;
- there is no Material Adverse Change (as defined below) relating to the Offer during the Offer Period as confirmed by the relevant Issuer;
- the cooling-off period of six (6) Business Days has expired ("Cooling-Off Period"); and
- any other additional conditions in respect of the Offer imposed by the Company have been fulfilled.
- During the Cooling-Off Period, you are allowed to withdraw your moneys, free of interest, from the Trust Account by putting a written request to the Company on or before the expiry date of the Cooling-Off Period. The refund of the moneys to you shall be contingent on the trustee releasing the moneys to the Company or you.
- The Conditions Precedent shall be fulfilled within fourteen (14) Business Days after the expiry of the Offer Period and may be extended at the absolute discretion of the Company. The Company shall issue a written confirmation to you within three (3) Business Days upon fulfilment of the Conditions Precedent.
- In the event the Conditions Precedent are not met within the stipulated period, all moneys equivalent to the amount invested by you in respect of each Offer will be refunded to you within thirty (30) Business Days from the date of expiry of the stipulated period in which the Conditions Precedent shall be met.
- For the purpose of this clause, "Material Adverse Change" means any of the following:
- the discovery of a materially false or misleading statement in any disclosures in relation to the Offer;
- the discovery of a material omission of information required to be disclosed; or
- there is a material change or development in the circumstances relating to the Offer or the Issuer.
8. SHARE SUBSCRIPTION
8.1. Subscription of Shares
- All investments via the Platform, unless otherwise specified, shall be implemented through a nominee structure whereby, iPivot Nominees, a dedicated nominee company, shall represent each Investor for the purposes of the Offer.
- If you agree to subscribe for shares pursuant to an Offer, you must effect the subscription or acquisition of shares by ticking the box in the shares subscription form and/or such other subscription document which is displayed on the Platform, agreeing and confirming, amongst others:
- the details of the subscription of shares of the Issuer or subscription of shares in a trust established for the specific Offer, whichever is applicable; and
- the execution of physical copies of the nominee agreement between, inter alia, the Investors and iPivot Nominees ("Nominee Agreement") and such other documents so required to effect the subscription of shares.
- The shares subscription form and/or such other subscription document will include important information in relation to your investment and the Offer which includes the commitment by you to invest the agreed amount in the Issuer through a nominee arrangement established for the specific Offer in exchange for the share subscription.
- The shares subscription form is legally binding on you once you agree to be bound by the terms and your offer to enter into the Nominee Agreement and a shareholders' agreement has been accepted by the Issuer after the Cooling-Off Period.
- Upon the successful subscription of shares, you acknowledge that shares issued by the Issuer shall be registered in the name of iPivot Nominees, subject to terms and conditions in the Nominee Agreement. As such, you acknowledge that you shall only have a beneficial interest in such shares in accordance with the terms and conditions of the Nominee Agreement.
8.2. Shares Issuance and Execution of Documents
- Once the Conditions Precedent have been fulfilled, the Issuer will be obliged to issue shares to you and the other Investors or the trustee (as the case may be) who have invested in the Issuer. The company secretary of the Issuer shall issue share certificates to the respective Investors or the trust established, as the case may be, within fourteen (14) Business Days from the date of the fulfilment of the Conditions Precedent. The Investors and/or iPivot Nominees and the Issuer shall execute physical copies of the shareholders’ agreement in due course.
- Upon the execution of the Nominee agreement and shareholders' agreement between the relevant parties and closing of the transaction, the moneys in the aforesaid trust account will be transferred to the Issuer. The amount so transferred to the Issuer will ordinarily be set-off against any fees and/or expenses then owing to the Company by the Issuer in relation to the services provided by the Company to the Issuer. These fees and expenses will be disclosed in the Offer Materials on the Platform.
8.3. Non-Completion and Refund of Share Payment
Should any Offer not proceed for any reason whatsoever, including where the targeted amount sought to be raised by the Issuer has not been achieved, or if your bid in response to the Offer is unsuccessful and not accepted for whatever reasons, or if you withdraw your Share Payment made during the Cooling-Off Period, the Company shall, unless otherwise provided in this Agreement, within ten (10) Business Days after the expiry of the Offer, return your Share Payment to you at the bank account details of which were provided by you, without any interest and after deduction of any transaction fees(s) and/or any exchange rate loss.
- While bids for shares in an Issuer will typically be accepted in order of receipt of the complete bid together with the Share Payment, the Company and the Issuer have the sole and absolute discretion to select bids to accept based on various factors which are considered appropriate, and may take into account factors such as the targeted amount sought, limit on the number of shareholders in the Issuer, respective amounts bid for by Investors, withdrawals by Investors during the Cooling-Off Period, level of any oversubscription etc.
- In the event there is an oversubscription of bids received for an Offer which total aggregate amount exceeds the targeted amount to be raised and there is no maximum amount to be raised previously agreed with the Issuer prior to the Offer Period, the Company and the Issuer may jointly decide to:
- stop receiving any more bids for the Offer notwithstanding that the Offer Period has yet to expire; or
- increase the targeted amount to be raised (if so provided under the terms of the Offer), or continue to receive bids that will be considered for acceptance or rejection after the Cooling-Off Period.
- If there is an oversubscription of bids received for an Offer which total aggregate amount exceeds the targeted amount to be raised and a maximum amount to be raised has been previously agreed with the Issuer prior to the Offer Period, bids shall continue to be received in respect of the Offer until the expiry of the Offer Period or the maximum amount to be raised has been achieved.
- The Company will be authorised to access the moneys paid by you and held in the trust account in accordance with the terms this Agreement.
8.5.Limited Role of the Company in the Offer Process
- All Offer Materials are prepared and provided by the respective Issuers, each of which warrants and represents that the information in the Offer Materials is true and accurate. The Company makes no representation or warranty, express or implied, in relation to the fairness, accuracy, correctness or completeness of any information contained in the Offer.
- We rely on the Issuer to update any information relating to the Issuer or the Offer which ceases to be accurate and/or complete at any stage subsequent to the listing of the Offer on the Platform.
- You shall decide independently whether there has been sufficient or accurate disclosure prior to making any decision to invest.
- You shall make your own assessment and decision as to whether or not to proceed with the investment based on the Offer Materials and the likelihood of any return of capital or profits, and conduct your own investigations on the Issuer which you deem appropriate.
- The Company will accept no liability whatsoever in regard to your decision to invest or not to invest, except to the extent imposed by applicable law.
9. INVESTORS' OBLIGATIONS AND REPRESENTATIONS
- You warrant and represent to the Company as follows:
- you are a natural person of full age and of sound mind (as applicable);
- if you are acting on behalf of an investor which is a corporation or trust company, you are the duly authorised representative of the investor and have been duly authorised by the investor to transact on the Platform, and that the investor is a company duly incorporated in accordance with the laws of its place of incorporation (as applicable); and
- he Declaration as may be made from time to time by you pursuant to Clause 5.3 (Investor’s Declaration) is true, accurate, complete, not misleading and does not contain any material omission.
- You further represent and warrant to the Company as follows:
- all information and documents provided to the Company is true, accurate, complete, current, not misleading and does not contain any material omission, in all respects;
- you shall update the Company if any of the details or information you have provided has changed or is not up-to-date. This shall include, without limitation, any change in email address which is the principal medium of communication from the Company and the Issuers to you;
- 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 this Agreement, or affect your ability to perform your obligations hereunder;
- you shall be personally responsible for the use and access of the Platform using your account or login details;
- you shall use and access the Platform at your own risk;
- you shall use and access the Platform in accordance with this Agreement and other terms and conditions of the Company, 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;
- you 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 Company or published by other users on the Platform;
- you 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;
- you shall not decompile, reverse engineer or otherwise attempt to discover the source code of the Platform, and/or any contents available on the Platform;
- you shall not, without written authorization from the Company, 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
- you 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.
- By accessing the Platform (whether from within or outside Malaysia or who are resident within or outside Malaysia), you shall be deemed to represent to the Company that on each occasion the Platform is accessed; a bid is made for an Offer; or any money is invested in any Issuer in response to any Offer, you are doing so in compliance with all applicable laws.
You agree that you will be liable to the Company and any of our directors, employees, agents and representatives and hereby agree to indemnify the Company and any of our directors, employees, agents and representatives against any and all claims, losses, expenses or liabilities arising out of or in connection with any such non-compliance or alleged non-compliance by you. The directors, employees, agents and representatives of the Company may enforce these obligations directly against you to the extent permitted by applicable law.
10. CHECKS AND ASSESSMENTS ON ISSUERS
- We undertake limited due diligence on each Issuer before publishing any Offers on the Platform.
- The limited due diligence is implemented to:
- ensure the fitness and properness of the Issuer, its board of directors, senior management and controller; and
- verify the business proposition of the Issuer.
- As part of our due diligence exercise, we will make certain basic investigations on the key individuals associated with the Issuer, being the directors, the persons identified as senior managers and/or controller(s) from the details provided by the Issuer (e.g. chief executives, and chief financial or operating officers).
- The investigations which we will carry out on directors, senior managers and controller(s) include but are not limited to the following:
- a review of the CTOS/RAM report on the Issuer;
- a review of the CTOS/RAM report or any other searches on each individual director, member(s) of the senior management and controller(s); and
- a check against our internal records to ascertain whether there has been any previous involvement with us, including any prior capital raising exercise.
- The investigations which we will undertake on the Issuer's corporate shareholders (if any) include CTOS searches / RAMCI checks or any other searches on its corporate shareholders in order to check the corporate status of the Issuer.
- The following companies will not be allowed to make on Offer through the Platform:
- companies which have commercially or financially complex structures (i.e. investment fund companies or financial institutions));/li>
- public listed companies and their subsidiaries;
- companies with no specific business plan or its business plan is to merge or acquire an unidentified entity;
- companies other than a microfund that propose to use the funds raised to provide loans or make investment in other entities;
- companies other than a mircrofund with paid up share capital exceeding RM5,000,000.00; and
- any other type of entity that is specified by the SC.
- If we identify any discrepancies or concerns when undertaking investigations and due diligence on the Issuer, we will raise them with the Issuer for explanation/clarification. If we are not satisfied with explanations provided or we form an adverse view of the Issuer, we may, at our sole and absolute discretion, reject the Issuer’s application to use the Platform to make Offers. Any decision to allow Offers for an Issuer to be listed on the Platform following discovery of any discrepancies or concerns as mentioned above is at the sole discretion of the Company and we will use our reasonable endeavours to make disclosures of any such concerns.
- In addition to the checks and due diligence on the Issuer, we will also undertake a review of the Issuer's business model, financial history and performance and the Issuer's capital needs, including an analysis in relation to the viability and likelihood of success of the Issuer's business (with or without new capital). Our decision to publish the Offer by the Issuer on the Platform must not be taken by any person as an indication of the merits of the Offer or our endorsement of the Offer.
11. NO WARRANTY
- We only perform preliminary assessments on the Issuers and to the extent permitted by law, owe no legal responsibility to Investors.
- We are not obliged to monitor the Issuer after proceeds are paid to the Issuer or in respect of the actual use of the proceeds received by the Issuer. The decision to commit to any investment is based on your independent assessment and made at your own risk based solely on information published on the Platform in relation to any Offer.
- We do not make any representation, warranty, promise or indication, express or implied, about the success or otherwise of the Issuers either in their ability to raise capital through the Platform or as to their future prospects once they have received capital, or past, current or future financial, business or legal status or affairs of the Issuers, their stakeholders or industry.
- You must read and understand the risk of investing through crowdfunding platforms such as the Platform and are encouraged to seek independent advice. The Company does not provide any advice (including without limitation investment, legal, taxation or other advice) with respect to any aspect of the transactions conducted through the Platform. Nothing on the Platform or any communications sent to you shall constitute or is intended to constitute advice.
- You must also be aware that the searches and investigations carried out by the Company may be incomplete as government records may not be up to date and occasionally may not contain certain key information.
12. FEES AND CHARGES
- Investors do not need to pay any fees or charges to us in relation to any Offer or investment.
- Notwithstanding the above, we reserve the right, in our sole and absolute discretion, to introduce fees or charges payable by Investors. Any introduction of fees or charges payable by Investors will only be effective upon this Agreement being varied or revised in the manner provided herein.
- You are not entitled to receive any interest or other return in respect of the moneys paid by you to the Company in relation to any Offers, investment or deals on the Platform.
- The Issuers shall be solely responsible for the payment of bank charges in relation to the establishment and operation of the Trust Account(s), the payment of credit card charges incurred as a result of settling of Share Payment by the Investors via the payment gateway or payment system available on the Platform, together with any stamp duty payable and other fees incurred in connection with the execution of any legal documents with the Investors and/or trustee (if applicable) in respect of the subscription of shares by the Investors or trustee (if applicable) in the Issuer at the relevant time, unless otherwise varied or agreed in writing between the relevant parties.
- Issuers will be required to pay a fee to us for any funds raised, typically at the following rates (subject to any future revision):
- For targeted amount of RM1,000,000 or less successfully raised through the Platform, a rate of 7% commission in cash or otherwise than in cash as may be agreed between parties; or
- For targeted amount of more than RM1,000,000 successfully raised through the Platform, a rate of 6% commission in cash or otherwise than in cash as may be agreed between parties.
- Notwithstanding the above, we reserve the right to vary the rates payable by the Issuers to the Company (on case-to-case basis) and the amount of fee we impose will be specified in the agreement between the Issuer and the Company ("Issuer Agreement") and will be due and payable in the manner specified therein. We may charge the Issuer for any additional services requested by the Issuer. The scope of any such charges will be agreed with the Issuer before incurring such costs or charges. The additional services requested by the Issuer shall form part of the main services we offer to the Issuer under the Issuer Agreement.
13. RISK STATEMENTS
- Being an Investor and investing through crowdfunding platforms such as the Platform, you must understand the riskiness thereof and make your own assessment and decision as to whether or not to proceed with the investment.
- You acknowledge and are clearly aware that:
- you should (i) conduct your own thorough research, investigation and analysis on the Issuer and all relevant information and documents provided; and (ii) consult your own professional financial and legal advisers, to assess the merits and risks before committing in any investment;
- the Issuers using the Platform to raise funds are private start-up, early stage or small or medium sized companies. Investment in these types of businesses is relatively speculative and carries higher risks compared to other public securities offerings under Malaysian law;
- Issuer's performances are subject to risks and uncertainties that may cause actual events and the future results of the Issuer to be different from the anticipated performance. You are prepared to bear the economic and financial risks of losing your entire investment;
- while the Company seeks to ensure that you are provided with such information as we believe is reasonably required to make an investment decision, you may not be provided with all financial, business or other information of the Issuer which could be relevant to your investment decision,;
- Offers being made on the Platform and registration of the Platform with the SC shall not be regarded as merits indication or recommendation to participate in any investment;
- your investment made through the Platform will be illiquid as there is no public market for the shares of the Issuers and you are unlikely to be able to sell your shares until and unless the Issuer is listed on the securities exchange market (including secondary market recognised by the SC) or is acquired by another company which may take a number of years from the time of your investment;
- if the Issuer raises additional capital at a later date, it may issue new shares to new investors and thus the percentage of the Issuer’s shares that you own may be diluted accordingly. The new shares may carry certain preferential rights to dividends, sale proceeds and others which may work to your disadvantage; and
- all monetary transactions made through our platform shall be in RM unless specified otherwise. As such, if your investment herein is made through a non-RM denominated account, your investment amount may be different depending on the exchange rate of the day as set out by the relevant financial institutions. Any deficit or losses as a result of the fluctuation in exchange rate shall be at your own risk.
14. CONFLICT OF INTEREST MANAGEMENT
- The Company, including any of our individual directors and shareholders, will disclose to the public on the Platform if -
- we hold any controlling shares in any of the Issuers hosted on the Platform; or
- we pay any referrer or introducer, or receive payment in whatever form, including payment in the form of shares, in connection with an Issuer hosted on the Platform.
- Notwithstanding the above, the Company’s shareholding in any of the Issuers hosted on the Platform shall not exceed 30%.
- The Company has not and will not provide any financial assistance to Investors to invest in shares of an Issuer hosted on the Platform.
- If there is any complaint, you may address the same to us by writing to us under the "Support" section of our Platform./li>
- Unresolved disputes will be referred to our oversight body which consists of our board of directors, Chief Executive Officer and such other person or persons deemed appropriate by the Company to be part of the oversight body.
- If you remain unsatisfied with our response to the complaint, you may refer the complaint to SC by contacting the Investor Affairs & Complaints Department, details of which are as follows:
Investor Affairs & Complaints Department
Securities Commission Malaysia
No 3 Persiaran Bukit Kiara
50490 Kuala Lumpur
Tel: 603 6204 8999
Fax: 603 6204 8991
- If any dispute remains unresolved, the parties may endeavour to settle the dispute by mediation administered by the Asian International Arbitration Centre before having recourse to litigation. The Asian International Arbitration Centre Mediation Rules shall apply.
- Access to the Platform is permitted on a temporary basis. The Company reserves the right to withdraw or amend the service provided on the Platform without notice. The Company will endeavour to allow uninterrupted access to the Platform, but access may be suspended, restricted or terminated from time to time. The Company shall not be liable to you 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 Company shall not be responsible or liable for the content or accuracy of any information or material downloaded or posted by you nor shall the Company be obliged to edit the content downloaded or posted on the Platform. However, the Company shall retain the right to remove any material or posting made on the Platform at our absolute discretion.
- You 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. You 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.
- You represent and warrant that you have taken all reasonable precautions to ensure that any data you upload or otherwise submit 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 Company accepts no responsibility or liability for your use of content on the Platform and such use is entirely at your own risk. While the Company takes reasonable precautions to prevent the existence of computer viruses or other malicious programs on the Platform, the Company accepts no liability for them if they do exist. You shall use, update and maintain appropriate antivirus software on their computer.
- You shall be liable to the Company for any loss or damage, costs, expenses, liabilities, fines, penalties, demands, or claims of any nature whatsoever suffered by the Company as a result of any breach of this Agreement or the fraudulent use of the Platform by you or your employees, officers, servants, agents or representatives.
- You agree to indemnify and hold harmless the Company, our officers, employees, agents and representatives from and against any and all claims, losses, expenses, demands or liabilities arising out of or in connection with your breach of this Agreement, including solicitors’ fees and costs incurred by the Company defending against them.
- Notice to us: Any notice pursuant to this Agreement shall be in writing and be given by sending the same by email to us at firstname.lastname@example.org.
- Notice to you: Any notice pursuant to this Agreement shall be in writing and be given by sending the same by email to the email address that you have provided during the user registration process.
- We reserve the right to vary the terms and conditions of this Agreement from time to time. If this Agreement is amended, we will notify you of the new investor agreement ("Amended Investor Agreement"). Any access to or use of the Platform by you and any bid for any Offer after the effective date of the Amended Investor Agreement shall constitute your agreement to and acceptance of the Amended Investor Agreement.
This Agreement shall not be construed so as to create a partnership, joint venture, or principal-agent relationship between you and us.
20.2. No Waiver
No failure on the part of the Company to exercise, and no delay on our part in exercising, any right or remedy under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
If any term in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such term or part shall to that extent be deemed not to form part of this Agreement but the legality, validity or enforceability of the remainder of this Agreement shall not be affected.
This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by executing any such counterpart.
20.5. Entire Agreement
Except as set forth in Clause 3 (Purpose of this Agreement and relationship with other agreements), this Agreement contains the entire agreement between you and us and supersedes and replaces all previous agreements and understandings between you and us, with respect to the matters set forth herein. You acknowledge that, in entering into this Agreement, you have not relied on, and shall have no remedies in respect of, any representation, warranty, pre-contractual statement, or other provision except as expressly provided in this Agreement.
20.6. Further Assurances
You shall from time to time (both during the continuance of this Agreement and after its termination) do all such acts and execute all such documents as may be reasonably necessary in order to give effect to the provisions of this Agreement.
Your costs and expenses (including professional, legal, and accounting expenses) of the preparation, negotiation, and execution of this Agreement and all associated documentation shall be borne by you.
All disclaimers, indemnities and exclusions in this Agreement shall survive termination of the Agreement for any reason.
20.9. Force Majeure
We are not in breach of this Agreement if there is, and shall not be liable or have responsibility of any kind for any loss or damage incurred by you as a result of, any total or partial failure, interruption or delay in performance of our duties and obligations occasioned by any act of God; natural disaster; act of government, state, governmental or supranational body or regulatory authority; war; civil disruption; pandemic; terrorism; labour disputes; or any other event, circumstance, or state of affairs (whether or not similar in kind to any of the above) beyond our reasonable control.
21. FURTHER INFORMATION
- All information which we are required to make available to you are provided on the Platform. You may request from us a copy of documents relating to Investors subject to a fee which we may charge in respect of photocopying costs and mail or courier charges.
- If you seek for any other information from us, we may agree to provide the requested information subject always to any obligations of privacy or confidentiality that we may owe to third parties. The requested information will ordinarily be sent by email, but should it be sent by courier or post then additional charges as stated above may apply.
- You will be able to view your own investment history by logging onto their account on the Platform and accessing their transaction history. No charges will be made for any such direct access by you.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Malaysia.
Updated as at 25th October 2021
IPIVOT SDN BHD (Company No. 1141902-D)
You, as the Investor, by ticking the box confirming that you have read and understood the terms and conditions and agree to be bound by the terms of this Agreement.