TCF Issuer and Investor Terms and Conditions
These Issuer & Investor Terms and Conditions (“Terms”) shall apply to each Issuer and Investor, and where applicable, shall also apply to the User.
By accessing, using, or continuing to access and use the Platform, or using the services provided via the Platform, each Issuer, Investor and User confirm that they have read, understood and agreed to these Terms, any other terms and conditions of the Platform, any other agreements or rules on the specific services offered under the Platform and Privacy Policy on the Platform (each as may be varied, amended or supplemented from time to time).
The Issuer, the Investor and the User (as the case may be) shall stop using the Platform immediately in the event any of them do not agree with these Terms, any other terms and conditions of the Platform and Privacy Policy.
Please read these Terms carefully and print a copy for your future reference.
DEFINITION AND INTERPRETATION
Unless the context otherwise requires, the following words shall have the following meanings assigned to it:
- “Application”
- Means the application made to the Platform Operator by an applicant to become an Issuer by filling (a) the relevant application forms, and (b) such other forms as may be required by the Platform Operator;
- “Authorised Representative”
- Means a person authorised to act on behalf of the Issuer, including the directors and senior management of the Issuer;
- “Business Days”
- Means the days on which banks are open for business other than Saturday, Sunday or public holiday in Kuala Lumpur and/or in Wilayah Persekutuan Kuala Lumpur;
- “Campaign”
- Refers to the portion of the TCF Exercise which is Hosted on the TCF Platform and is open to receiving investments from Investors;
- “Campaign Period”
- Refers to the period of time when the Campaign is Hosted on the TCF Platform;
- “Cooling-Off Period”
- Refers to the period of six (6) Business Days after the Campaign Period which allows the Investor to opt-out or proceed with investing in the Company;
- “Directors”
- Refers to any individual director of the Company
- “Fees”
- Has the meaning specified in Clause 12;
- “Guidelines”
- Means the Guidelines on Digital Asset (https://www.sc.com.my/regulation/guidelin es/digital-assets) issued by the SC as may be amended from time to time, and include such other guidelines, orders, directives, by-laws, regulations and policies as may be issued from time to time by the relevant authority in respect of token crowdfunding in Malaysia
- “Host or Hosted or Hosting”
- Means the act of listing the Company and its Offer on the TCF Platform for the purpose of receiving investments from Investors.
- “Investment Amount”
- Means the total amount invested by the Investors pursuant to the Hosting
- “Investor”
- Means the Investors who have invested in the Campaign;
- “Issuer"
- Means a person who has been approved by the Platform Operator to be Hosted on the Platform as an Issuer;
- “Material Change”
- Means any change that meets the following criteria: (a) The discovery of a false or misleading statement in any disclosures; (b) The occurrence of a material change affecting a matter disclosed in the White Paper; (c) The discovery of any material omission of information that may affect Investors; (d) Any material development in the circumstances; (e) The discovery of any material change in the information submitted to the Securities Commission (f) The occurrence of a matter and information in respect of that matter would have been required by the TCF Guidelines to be disclosed in the White Paper if the matter has arisen at the time the White Paper was prepared; or (g) Any change requested by the Company and confirmed by the TCF Operator to be a Material Change;
- “Offer”
- Means the investment offer by the Company to Investors pursuant to the Campaign; and includes the Tokens and Offer Document;
- “Offer Documents”
- Means the documents prepared by the Company setting out the relevant information of the Campaign to be circulated on the TCF Platform and to potential Investors; and shall include the White Paper;
- “Offer Period"
- In respect of a particular Hosting, means the period during which the Investors may pay the TCF Funds into the Trust Account;
- “Platform Operator”
- Means Pitch Platforms Sdn.Bhd. [Registration No.201501033144 (1158464-T)], being the owner and operator of the Platform, and its subsidiaries;
- “Proposal”
- Means the proposal of the Issuer for a Hosting and shall include supporting documents and information requested by the Platform Operator;
- “Review”
- Means the review of the Proposal carried out by the Platform Operator in accordance with its internal guidelines and policies (as may be varied, amended or supplemented from time to time);
- “Securities Commission (SC)”
- Refers to the Securities Commission of Malaysia; , being the regulatory authority on TCF in Malaysia;
- “Successful Campaign”
- Means a Campaign which has been declared as successful by the TCF Operator upon the Campaign achieving the Minimum Funding Target upon the expiry of the Campaign Period and Cooling-Off Period;
- “Targeted Amount”
- In respect of a particular Hosting, means the range of minimum and maximum amount sought to be raised by an Issuer;
- “TCF Agreement”
- Means Token Crowdfunding Agreement;
- “TCF Exercise”
- Means a fundraising exercise on the TCF Platform undertaken by the Company through issuance and allocation of Tokens;
- “TCF Guidelines”
- Means the Guidelines on Digital Assets issued by the Securities Commission of Malaysia, including any latest versions or any other guidelines applicable and in force;
- “TCF Platform”
- Means the token crowdfunding platform operated by the Platform Operator with https://www.pitchin.my being its website domain and includes any other affiliate platforms operated by TCF Operator;
- “Token Crowdfunding (“TCF”)”
- Has the same meaning as Initial Exchange Offering (IEO) as defined by the Securities Commission under the TCF Guidelines;
- “Tokens”
- Means the digital tokens being offered by the Company to the Investors pursuant to the Campaign;
- “Total Investment Amount”
- Means the total Investors' Funds raised through the Campaign from Investors;
- “Trust Account”
- Means a trust account created and maintained by pitchIN with a Trustee registered with the SC under the latest Guidelines on Registration and Conduct of Capital Market Services Providers for the purpose of holding any funds raised from the investors during the Campaign;
- “Trust Fund”
- Means the TCF Funds deposited in the Trust Account;
- “Trustee”
- Means the trustee appointed by the Platform Operator to hold the Trust Fund on trust for the relevant person; and
- “User”
- Means any person who browses, visits, access and/or uses the Platform, whether active, semi-active or inactive user, and includes the Issuer and the Investor, and “Users” means any two or more of them.
- “White Paper”
- Means the white paper prepared by the Company for the TCF Exercise based on requirements in the TCF Guidelines and shall include any supplementary white paper approved by the TCF Operator or Securities Commission;
Any reference to a statutory provision shall include such provision and any regulations made in pursuance thereof as from time to time modified, amended, replaced or re-enacted whether before, on or after the date of these Terms. Any reference to any “law” shall include common law applicable in Malaysia and the provisions of statutes, regulations, orders and other subsidiary legislation issued pursuant to such statute, as well as directions, guidelines and circulars issued by any regulatory authority pursuant to any authority granted by any such statute.
Unless the context otherwise requires or permits, references to the singular number shall include references to the plural and vice versa, references to a particular gender shall include all genders, and references to natural persons shall include bodies corporate and vice versa.
Any reference to a "day", "week", "month" or "year" is to that day, week, month or year in accordance with the Gregorian calendar.
The headings are inserted for convenience only and shall not affect the construction of these Terms.
The expression "Platform Operator", "Issuer", "Investor" and "User" shall, where the context permits, include their respective successors, personal representatives and permitted assigns.
Where a word or phrase is given a defined meaning in these Terms, any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning.
Any reference to “these Terms” is a reference to these Terms and any written amendments, supplementals or novation of these Terms from time to time, and includes a reference to any document which amends, waives, is supplemental to or novates the terms of these Terms.
Any reference to “writing”, or cognate expressions, includes any communication effected via the Platform, electronic mail, telex, cable, facsimile transmission or other comparable means but shall not include short messaging services, instant messaging services or internet chat.
Any reference to “person’ includes individual, partnership, association, company or corporation.
If any period of time is specified from a given day, or the day of a given act or event, it is to be calculated exclusive of that day and if any period of time falls on a day which is not a Business Day, then that period is to be deemed to only expire on the next Business Day.
No rule of construction applies to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it.
All transactions and payments must be completed and cleared or received during the normal business hours of the Platform Operator (09.00 to 16.00 local time in Kuala Lumpur). Where a transaction is not confirmed before the close of business hours on one Business Day then that transaction will be confirmed and deemed to have become final and binding at the opening of business hours on the next Business Days.
CONDITIONS PRECEDENT
Before a person may carry out a Hosting, the person shall first apply to the Platform Operator to become an Issuer, and thereafter shall submit its Proposal to the Platform Operator for its Review. The Platform Operator reserves the right at its sole discretion, at any time, to prevent, stop, withdraw and/or reject the Application and/or Proposal of any person without assigning any reason whatsoever.
The Platform Operator uses its own internal guidelines and policies when assessing the Applications and Proposal of any person and has absolute discretion as to (a) whether an applicant may become an Issuer; and (b) whether an Issuer may carry out the Hosting.
APPLICATION AS AN ISSUER
To qualify as an Issuer, the applicant shall fulfil the following criteria:
The applicant can be either of the following entities:
a locally incorporated company;
a limited liability partnership incorporated in Malaysia;
an unlisted subsidiary of a public-listed company; or
a special purpose vehicle (SPV) of a public-listed company;
It shall not be any of the following entities:
Exempt private company;
Public-listed companies;
At the point of Hosting or any period specified in the Offer Document, is not undergoing an ECF, P2P or TCF campaign with any other Recognised Market Operator (RMO)
Have its main business operations carried out in Malaysia; and
Where the Issuer is other than an LLP, the Issuer must have a minimum of:
RM500,000.00 paid-up capital; and
RM500,000.00 of shareholders’ funds maintained at all times;
Where an Issuer is an LLP, the Issuer must have a minimum capital of RM500,000.00 maintained at all times;
The Issuer complies with any other additional financial requirements imposed by the SC on the Issuer at any time that commensurate with the nature, operations and risks posed by the Issuer;
The Issuer at all times have at least two (2) directors whose principal or only place of residence is in Malaysia;
The Issuer ensures that its directors and senior management are fit and proper at all times;
The Issuer’s directors and senior management must, in aggregate, own at least 50% equity holding in the Issuer on the date of the issuance of the Tokens;
Post issuance of the Tokens, the Issuer’s directors and senior management may only sell, transfer or assign not more than 50% of their respective equity holding until completion of TCF project. For the avoidance of doubt, directors and senior management include those who are subsequently appointed as a director or senior management post issuance of the Tokens.
The applicant hereby agrees to allow the Platform Operator to carry out any identity, credit and fraud checks on the applicant and its officers, directors, major shareholders, employees and representatives (including but not limited to the Authorised Representatives). The Platform Operator may engage the service of any third-party service providers to conduct such checks. When requested by the Platform Operator, the applicant and its officers, directors, major shareholders, employees and representatives (including but not limited to the Authorised Representatives) shall promptly submit their identity documents, bank details and any other information and/or documents that the Platform Operator may reasonably request in order to assess the Application.
In the event the information and/or documents supplied to the Platform Operator are insufficient or are not supplied to the satisfaction of the Platform Operator to confirm the identity of the relevant persons and relevant checks are unable to be conducted to the satisfaction of the Platform Operator, the Platform Operator shall have the indisputable right not to approve the Application and/or not to permit the Issuer to carry out the Hosting.
The applicant may be approved as an Issuer upon notified by the Platform Operator in writing if the applicant successfully fulfils Clause 3 and any other requirement deemed necessary by the Platform Operator.
Upon approval as an Issuer, the Issuer shall sign up on the Platform with a username and email address, enter a secure password and fulfil such other security processes as may be required on the Platform in order to log into the Platform. The login details are personal to the Issuer and are not transferable.
The Issuer shall not seek a Hosting of its Tokens with another Recognized Market Operator until the expiry of a period of six (6) months from the date of the Token Crowdfunding agreement being executed by the Issuer or until the Hosting is terminated by either party, whichever is later.
Each Issuer shall ensure that only the Issuer and its Authorised Representatives shall have access to the Platform by using the Issuer’s login details. Any login to the Platform by using the Issuer’s login details shall be deemed to have been made by the Issuer. The Issuer shall not and shall ensure that its Authorised Representatives do not misuse its login details and the Platform to the detriment of the Platform Operator and the Platform. The Issuer shall be responsible for all information and activities carried out on the Platform by anyone using the Issuer’s login details. The Issuer shall immediately notify the Platform Operator in writing of any breach of security, loss, theft or unauthorised use of the login details of the Issuer.
The Issuer and its Authorised Representatives shall only use and access the Platform for the purposes contemplated by these Terms and for no other purposes, and they hereby agree not to adapt or circumvent the systems in place in connection with the Platform, nor access the Platform for any unauthorised, malicious, illegal or fraudulent purpose. The Platform Operator reserves the right at its sole discretion not to act on any instructions received from the Issuer where the Platform Operator in its reasonable opinion, suspects any unauthorised, malicious, illegal or fraudulent activity.
The Platform Operator reserves the right at its sole discretion, at any time and from time to time, to prevent, stop and/or disallow by any means, any Issuer to continue using the Platform without assigning any reason whatsoever, and/or to revoke the registration status and deactivate the account of the Issuer from the Platform.
The revocation of the status of the Issuer under these Terms shall not result in a termination of any contract or other agreement to which the Issuer is a party at that time.
The Platform Operator reserves the right to waive any of the requirements in Section 3. For Section 3.1, waiver by the Platform Operator will be subjected to a confirmation of waiver and approval by the SC.
APPROVAL FOR HOSTING
Before an Issuer may carry out a Hosting, the Issuer shall submit the Proposal, together with such other information and documents as may be requested by the Platform Operator, to the Platform Operator in a form and manner as may be requested by the Platform Operator, for its Review.
The Issuer must ensure that the Proposal complies with the TCF Guidelines and any other Platform requirements deemed necessary by the Platform Operator in making an application to raise funds through a TCF exercise.
Prior to each Hosting, the Issuer shall inform all of the Issuer’s current shareholders of the Proposal in accordance with the Issuer’s current Memorandum and Articles of Association or Constitution and any relevant agreement(s) between the Issuer and its shareholders, and ensure that all and any necessary approvals and/or consents for the Hosting are obtained and provided to the Platform Operator immediately upon request (including where applicable, any waivers of pre-emption rights).
THE PROPOSAL
The Issuer shall ensure that the Proposal contains all information and documents which may be relevant to an Investor to make an informed decision to invest on the Hosting.
Subject to the Guidelines and the TCF Guidelines (as may be varied, amended or supplemented from time to time), the Issuer shall submit the relevant information and documents to the Platform Operator for the purpose of the Review, including but not limited to the following:
a fit and proper declaration of all the Issuer’s directors and senior management;
the white paper which complies with the TCF Guidelines, which includes the following information:
brief description of the Issuer’s directors, senior management, key personnel and advisers including name, designation, nationality, address, professional qualifications and related experience;
the objective or purpose of the TCF, including detailed information on the TCF Project to be managed and operate by the Issuer;
the key characteristics of the Token;
detailed description of the sustainability and scalability of the TCF Project;
the business plan of the Issuer;
the targeted amount to be raised through the TCF, and subsequent use and application of the proceeds thereafter illustrated in a scheduled timeline for drawdown and utilisation of proceeds (schedule of proceeds);
any rights, conditions or functions attached to Tokens including any specific rights attributed to a token holder;
discussion on the determination of the accounting and valuation treatments for the digital tokens including all valuation methodology and reasonable presumptions adopted in such calculation;
associated challenges and risks as well as mitigating measures thereof;
information in relation to the distribution of the Tokens and where applicable, the distribution policy of the Issuer;
a technical description of the protocol, platform or application of the Token, as the case may be, and the associated benefits of the technology;
audited financial statements of the Issuer; and
a statement of disclaimer as follows:
“the furnishing on this white paper to the Securities Commission Malaysia should not be taken to indicate that the Securities Commission Malaysia assumes responsibility for the correctness of any statement made in this white paper.”
In addition to the requirements in 5.2(B) herewith, the white paper must also contain the following statement: "Investors are reminded that Bank Negara Malaysia (the Bank) does not recognise digital tokens as legal tender nor as a form of payment instrument that is regulated by the Bank and that the Bank will not provide any avenues of redress for aggrieved token holders”.
Where a white paper has been furnished to the Platform Operator and the SC, but before the closing of the offer period, the Issuer becomes aware that:
A matter has arisen and information in respect of that matter would have been required by the TCF Guidelines to be disclosed in white paper if the matter has arisen at the time the white paper was prepared;
There has been material change affecting a matter disclosed in the white paper; or
The white paper contains a statement or information that is false or misleading, or from which there is a material omission,
The Issuer must notify the Platform Operator, and, as soon as practicable, furnish a supplementary white paper to the Platform Operator and the SC.
Upon completion of the Review, the Platform Operator may, in its sole absolute discretion, approve or reject the Proposal:
In the event the Proposal shall be rejected, the Issuer shall not conduct the Hosting, and the Platform Operator shall have the right to revoke the registration status of the Issuer and/or to deactivate the account of the Issuer from the Platform, and the Issuer may submit a fresh Application and fresh Proposal; and
In the event the Proposal shall be approved, the Issuer shall proceed with the Hosting in accordance with the terms of approval of the Platform by issuing the Offer Documents. For the avoidance of doubt, the Platform Operator shall be entitled to impose terms and conditions on the approval of the Proposal. When requested by the Platform Operator from time to time, the Issuer shall promptly make such adjustments, amendments, variations, modifications or supplements to the Offer Documents.
The Issuer and its Authorised Representatives agree that they alone shall bear all responsibility for the content of the Proposal and the Offer Documents and each of the Issuer and its Authorised Representatives shall, jointly and severally, indemnify the Platform Operator against all claims, liabilities, demands, penalties, costs, expenses, damages and losses of whatsoever nature (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by, arising out of or in connection with the Proposal and the Offer Documents (and the contents thereof).
The Issuer hereby represents and warrants in respect of the Proposal and Offer Documents as follows:
that the Issuer complies with the requirements of the TCF Guidelines at all times;
ensures that it does not submit or provide any document or information that is false or misleading, or from which there is material omission;
in relation to the requirement of 3.1(i), submit to the Platform Operator a fit and proper declaration of its directors and senior management within three (3) business days from the appointment or reappointment of the director or senior management; and
immediately notify the Platform Operator and the SC of any failure to comply with any requirement the TCF Guidelines.
The Issuer shall retain all relevant documents and agreement related to the TCF Project and Hosting for a period of seven (7) years from the date the documents or agreements are submitted to the Platform Operator.
The Issuer must provide to the SC any information or assistance relating to the Tokens as the SC deems necessary.
The Issuer must provide a confirmation to the SC that the drawdowns have been utilised for the purposes stated in the white paper in such form and manner as the SC may specify.
The Issuer must not make any changes to the utilisation of the proceeds post the issuance of the Tokens or any changes that affect the Token holder’s rights, unless prior approval, of the token holders representing 75% of the total amount of Tokens held by all Token holders present and voting has been obtained.
The Issuer must establish a framework which sets out the policies and procedures to effectively and efficiently manage issues of conflict of interest including potential conflicts of interest and any related party transactions which may arise in the course of the TCF Project.
Where material change occurs affecting the TCF, the TCF Project or the Issuer, the Issuer must, immediately upon knowing or becomes aware of the event, inform the Platform Operator of such change.
In addition to 5.12 herewith, post issuance of the Tokens, the Issuer must also immediately notify the Platform Operator of any sale, transfer or assignment involving five (5) per centum or more shareholding of the Issuer.
The Issuer hereby assigns absolutely to the Platform Operator all title, benefits and interest relating to copyright on the contents published on the Platform in respect of the Hosting, including but not limited to texts, graphics, drawings, layouts and photographs and the Platform Operator may reproduce whether in whole and in part such content.
The Issuer acknowledges that if the Platform Operator approves the Proposal, the Platform Operator may include in the Proposal and the Offer Documents such information as the Platform Operator may in its absolute discretion deem appropriate including (without limitation) a disclaimer of its liability and a risk warning to Investors.
The Issuer acknowledges that the Proposal and/or Offer Documents will be reviewed by potential Investors and that whilst the Platform Operator attempts to impose duties of confidentiality on such persons, the Platform Operator cannot guarantee that the information contained in the Proposal and/or Offer Documents will remain confidential. The Platform Operator accepts no responsibility for any such information coming into the public domain by reason of the acts of third parties, potential Investors or otherwise save for where this occurs by reason of the negligence, fraud or breach of these Terms by the Platform Operator.
Where there are any changes to the information contained in the Proposal and/or the Offer Documents, the Issuer shall inform the Platform Operator of this fact immediately in writing.
CAMPAIGN
Upon approval by the Platform Operator and the SC, the Issuer may proceed to Hosting.
The Issuer may run any marketing campaign in respect of the Hosting to attract Investors, provided that the Issuer shall obtain the Platform Operator’s prior approval in writing in respect of each marketing campaign (whether or not to be run on the Platform) before running it. The Platform Operator reserves the right to approve or reject any marketing campaign in its absolute discretion. When requested, the Issuer shall vary, amend and/or supplement the marketing campaign materials in accordance with the recommendations of the Platform Operator.
The Issuer shall link any campaign run outside the Platform to the Platform Operator and the Platform.
In addition to the above, potential Investors may post questions to the Issuers on the Platform. The Issuers shall answer such questions with answers that shall be true, accurate, complete, current, not misleading and do not contain any material omission, and if required by the Platform Operator, to provide supporting evidence for such answers.
The Issuer must ensure that all information disseminated for marketing or promotion is consistent with the contents of its white paper and are appropriately displayed in all marketing and promotional materials including its website.
The Issuer must not engage any third-party individual(s) or entity, other that the Platform Operator, to endorse or represent the Issuer with the intended purpose of marketing, promoting, gaining publicity or soliciting funds for its TCF.
REGISTRATION AS INVESTORS
The portions of the Platform that relate to the viewing of Hostings or to making investments on the Issuers are available only to certain qualified, registered and authorised Users of the Platform, who are registered as Investors.
Pursuant to the Guidelines and TCF Guidelines, Investors shall be categorised into three (3) categories:
Sophisticated Investors;
Angel Investors; and
Retail Investors.
Sophisticated Investors are individuals and entities that meet the requirements in the SC’s Guidelines on Categories of Sophisticated Investors (https://www.sc.com.my/regulation/guidelines/categories-of- sophisticated-investors)
Angel Investors refers to individuals with an income of RM180,000 per annum or above (RM15,000 per month or above) or an individual who, jointly with his or her spouse, has a gross annual income of RM250,000 per annum or above.
Retail Investors are all other individuals above the age of 18 and corporations and partnerships that are legally able to invest in businesses, and who falls outside the definition of sophisticated investors and angel investors.
Persons who are resident outside of Malaysia are allowed access to Hostings and investment opportunities on the Platform only if such access does not violate the laws of their country of residence. The portions of the Platform that relate to the viewing of Hostings or to making investments on the Issuers may not be used by any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or where the Platform Operator or one of its affiliates is not authorized to provide such information or services.
The registration of the Investor on the Platform shall be subject to the approval of the Platform Operator. The Platform Operator shall have the sole discretion to approve or to reject the User’s application to become an Investor on the Platform and shall not be required to provide any reasons for its decisions. The Platform Operator may attach conditions to its acceptance of the Investor’s registration.
The Investor hereby agrees to allow the Platform Operator to carry out any identity, credit and fraud checks on the Investor and where appropriate its officers, directors, employees and representatives. The Platform Operator may engage the service of any third-party service providers to conduct such checks. When requested by the Platform Operator, the Investor and where applicable, its officers, directors, employees and representatives shall promptly submit their identity documents, bank details and any other information and/or documents that the Platform Operator may reasonably request, to enable the completion of Anti-Money Laundering (AML) and Know-Your-Customer (KYC) processes as required under the applicable laws and regulations.
Each Investor shall ensure that only the Investor shall have access to the Platform by using his own login details. Any login to the Platform by using the Investor’s login details shall be deemed to have been made by the Investor. The Investor shall not misuse its login details and the Platform to the detriment of the Platform Operator and the Platform. The Investor shall be responsible for all information and activities carried out on the Platform by anyone using the Investor’s login details. The Investor shall immediately notify the Platform Operator in writing of any breach of security, loss, theft or unauthorised use of the login details of the Investor.
The Investor shall only use and access the Platform for the purposes contemplated by these Terms and for no other purposes, and they hereby agree not to adapt or circumvent the systems in place in connection with the Platform, nor access the Platform for any unauthorised, malicious, illegal or fraudulent purpose. The Platform Operator reserves the right at its sole discretion not to act on any instructions received from the Investor where the Platform Operator in its reasonable opinion, suspects any unauthorised, malicious, illegal or fraudulent activity.
The Investor hereby assigns absolutely to the Platform Operator all title, benefits and interest relating to copyright on the contents published on the Platform by the Investor, including but not limited to texts, graphics, drawings, layouts and photographs.
The Platform Operator reserves the right at its sole discretion, at any time and from time to time, to prevent, stop and/or disallow by any means, any Investor to continue using the Platform without assigning any reason whatsoever, and/or to revoke the registration status and deactivate the account of the Investor from the Platform.
The revocation of the status of the Investor under these Terms shall not result in a termination of any contract or other agreement to which the Investor is a party at that time.
INVESTMENT LIMITS
There is no restriction on the investment amount that may be made by a Sophisticated Investor.
An Angel Investor is allowed to invest a maximum of RM500,000.00 within a 12-month period on the Platform and any other TCF platform.
A Retail Investor is only allowed to invest a maximum of RM2,000.00 per Issuer with a total investment limit not exceeding RM20,000.00 within a 12-month period on the Platform and any other TCF platform.
The investment limits specified in Clause 8 are applicable to local and foreign investors.
DECLARATION BY INVESTORS
The Investor shall declare his own Investor category and any investment made on any TCF platform for the immediately preceding 12-month period before making the investment on each Hosting. That declaration places the responsibility of truthfulness upon the Investor.
The Platform Operator shall not be held responsible to any person for any false declarations made by the Investor and the Investor shall indemnify and keep indemnified in full the Platform Operator against all losses, costs, expenses, damages, penalties, fines, liabilities or claims of whatsoever nature that may be suffered or incurred by the Platform Operator as a result of any false declarations made by the Investor. In addition, prior to making any investment through the Platform, the Investor may be required to provide any information and/or supporting documents that provide proof that the Investor is a Sophisticated or Angel Investor. The Investor’s failure to provide any information and documentation requested to confirm the Investor’s status as a Sophisticated or Angel Investor shall be cause for the Platform Operator to immediately discontinue the Investor’s use of the Platform.
INVESTMENT PROCESS
The Investors shall be entitled to participate in a Hosting by depositing the TCF Funds into the Trust Account during the Offer Period.
The Offer Period shall end on the earlier of the following:
the Targeted Amount is raised; or
the last date of the Offer Period as set out in the Offer Documents or on the Hosting webpage,
and for the avoidance of doubt, in case of paragraph (a) above, in the event the Targeted Amount is not maintained at the expiry of the Cooling-Off Period, and subject to the prior written approval of the Platform Operator, the Offer Period may be extended to the last date of the Offer Period as set out in the Offer Documents or on the Hosting webpage (“Extended Offer Period”).
During the Offer Period, the Issuer shall not:
communicate any offer or inducement to engage in investment activity to any person other than to the Investors on the Platform; and
participate in any other TCF platform or engage in discussion with any registered market operator.
The Issuer shall indemnify the Platform Operator against all claims, demands, liabilities, costs, expenses, damages, fines, penalties and losses of whatsoever nature (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by, arising out of or in connection with a breach of these Terms by the Issuer.
Where the Targeted Amount has been met whether on or before the expiry of the Offer Period or the Extended Offer Period (if applicable), the Issuer shall allow the Cooling-Off Period to expire before the Targeted Amount raised may be released to the Issuer.
During the Cooling-Off Period, the Investors are allowed to withdraw their TCF Funds, free of interest, and any other charges imposed on the day the Token was purchased, from the Trust Account by putting a written request to the Platform Operator on or before the expiry of the Cooling-Off Period. The refund of the TCF Funds to the Investor shall be contingent on the Trustee releasing the TCF Funds to the Platform Operator or the Investor.
If the Hosting is successful (i.e., the Targeted Amount has been raised and remains so upon the expiry of the Cooling-Off Period), a contract for subscription and issuance of Tokens (“Contract”) shall arise between the Issuer and the relevant Investors. The Issuer shall procure the relevant persons to execute all necessary acts, deeds and actions to give effect to the Hosting and Offer Documents before the Targeted Amount raised may be released to the Issuer. The Investor shall consent and authorise the Platform Operator and/or the Issuer to open a Token-holding account on any Token-storage mechanism for the purpose of maintaining custody over the Tokens, whether operated by the Platform Operator or otherwise. The Investor acknowledges that this consent and authorisation may be more convenient and easier to coordinate for the purpose of Token allocation, bearing in mind that there may be a large group of Investors who have similarly invested in the TCF Exercise.
To facilitate the process in 10.7, the Investor further consents to the use and processing of their personal data by Platform Operator and/or the Issuer for the opening of the Token-holding accounts.
In the event the Targeted Amount is not met or the Targeted Amount is not maintained at the expiry of the Cooling-Off Period, the Hosting shall be deemed unsuccessful and the Trust Funds shall be refunded free of interest to the relevant Investors after the expiry of the Cooling-Off Period. The refund of the Trust Funds to the relevant persons shall be contingent on the Trustee releasing the funds.
LIMIT TO FUND RAISING
The Issuer shall only utilise the Platform to raise a maximum amount, amounting to the following:
Issuer’s shareholders’ funds or in the case of an LLP, Issuer’s capital X Multiple (20) = Maximum quantum of fund permitted to be raised within any continuous 12-month period, subject to a ceiling of RM100 million The Issuer must demonstrate to the Platform Operator that the gross proceeds to be raised from the TCF would be sufficient to undertake the TCF project as proposed in the white paper.
The Tokens issued by the Issuer must be fully subscribed, and an Issuer is not allowed to keep any amount exceeding the target amount raised, unless approved by the Platform Operator and SC.
In the event the Issuer is unable to comply with the requirement in 11.3, the Platform Operator shall refund all monies collected from the Token holders within six (6) business days from the date of the closing of the offer period.
FEES
The Issuer shall pay the following fees (inclusive of Goods and Services Tax) to the Platform Operator (together read as the “Fees”):
A non-refundable fee to be paid to the TCF Operator upon the execution of this Agreement to start the onboarding process (“Onboarding Fee”).
A percentage of the Total Investment Amount to be paid to the TCF Operator in the event of a Successful Campaign (“Success Fees”).
A fee to be paid to the TCF Operator in the event of a Successful Campaign to conduct an independent review of the relevant codes and / or programs relating to the Tokens (“Smart Contract Audit Fees”).
A fee to be paid annually to the TCF Operator commencing from the date of a Successful Campaign until the expiry of the Term (“Post-Campaign Management Fees”).
Any other costs and expenses as may be advanced by the TCF Operator, provided that it has been mutually agreed by the Parties (“Other Fees”).
The fee schedule will be reflected on the Platform Operator’s website (https://www.pitchin.my/fee-structure), and to be agreed upon by the Issuer and Platform Operator before the execution of the TCF agreement.
The Issuer acknowledges that ancillary charges or fees, including legal fees, may be payable by the Issuer to third parties in connection with the Proposal, Offer Documents and/or hosting. The Issuer agrees to indemnify the Platform Operator against any claims, losses, costs or expenses resulting from a breach of these Terms.
The Platform Operator shall be entitled to deduct the Fees and any amount owing from the Issuer to the Platform Operator from the Targeted Amount raised before releasing such amount to the Issuer.
WARRANTIES AND UNDERTAKINGS
The Issuer and its Authorised Representatives warrant and represent to the Platform Operator as follows:
the Issuer is an entity authorised by the TCF Guidelines to participate in an TCF Exercise;
in respect of each hosting, the Issuer does not breach the limit to fund raising prescribed by the Guidelines and TCF Guidelines; and
the investment structure contained in the Hosting complies with all legal and regulatory requirements (relating to financial promotions or otherwise).
The Investor warrants and represents to the Platform Operator as follows:
he is a natural person of full age and of sound mind;
it is a company duly incorporated in accordance with the laws of its place of incorporation (if applicable); and
the declaration as may be made from time to time by the Investor pursuant to Clause 9 is true, accurate, complete, not misleading and does not contain material omission.
The Issuer and its Authorised Representatives, and the Investor severally represent and warrant to the Platform Operator as follows:
all information and documents provided to the Platform Operator is true, accurate, complete, current, not misleading and does not contain any material omission, in all respects and that they shall update the Platform Operator if any of the information they have provided is not up-to-date;
there is no action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official (whether pending or threatened) that is likely to affect the legality, validity or enforceability of these Terms, or affect its ability to perform its obligations hereunder;
they shall be personally responsible for the use and access of the Platform using their account or login details;
they shall use and access the Platform at their own risk;
they shall use and access the Platform in accordance with these Terms and other terms and conditions of the Platform Operator, and in accordance with any law for the time being in force in Malaysia, including but not limited to the Communications and Multimedia Act 1998, and shall not use the Platform for any unlawful purpose;
they 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 Platform Operator or published by other Users on the Platform;
they 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;
they shall not decompile, reverse engineer or otherwise attempt to discover the source code of the Platform, and/or any contents available on the Platform;
they shall not, without written authorization from the Platform Operator, access, hack into, interfere with, disrupt, disable, over-burden or otherwise impair the proper functioning of the Platform, including but not limited to the following means: denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, reverse engineering or reprogramming; and
they shall not initiate any transaction or transact, transmit or receive payment transfers via the Platform for or in connection with any criminal or illegal purpose or any purpose that may contravene any anti-money laundering laws.
THE ROLE OF PITCHIN
The Platform Operator performs an administrative role in matching Investors and Issuers and distributing documentation and information between such parties. For the avoidance of doubt, the Platform Operator is not a party to any contract between the Investors and the Issuers (unless in its capacity as an Investor) and it does not accept receipt of any monies from the Investors or from the Issuers other than for payment of the Fees.
The Platform Operator does not provide any advice (including but not limited to investment, legal, taxation or other advice) with respect to any aspect of the transactions conducted through the Platform, other than advice on the technical use of the Platform. Nothing on the Platform or any communications sent to the Users shall constitute or is intended to constitute advice.
FORCE MAJEURE
The Platform Operator shall not be liable to any person and shall not be deemed to be in breach of these Terms by reason of any delay in performing or failure to perform any of its obligations under these Terms if the delay or failure was caused by an event of force majeure.
Without prejudice to the generality of the foregoing provision, force majeure shall include but not limited to the following:
act of God, including but not limited to fires, explosions, earthquakes, drought, tidal waves and floods, or accident;
war, threat of war, act of terrorism or threat of terrorism, sabotage, insurrection, civil disturbance or requisition;
restrictions imposed by any law, regulations, by-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority;
interruption of traffic, strikes, lock-outs, or other industrial actions or trade disputes (whether involving the employees of the Platform Operator or third party);
breakdown of internet services for any reason whatsoever, save for the wilful misconduct of the Platform Operator;
other unforeseeable circumstances beyond the control of the Platform Operator against which it would have been unreasonable for the Platform Operator to take precautions and which the Platform Operator cannot avoid even by using its best efforts.
Upon the occurrence of any force majeure event, the performance of the Platform Operator’s obligations under these Terms shall be suspended during that period of force majeure and the Platform Operator shall be granted an extension of time for performance equal to the period of delay.
TERMINATION
The Issuer shall not terminate the hosting and/or withdraw the Proposal fourteen (14) days before the commencement of the Offer Period or at any time during the Offer Period without the prior written consent of the Platform Operator.
The Issuer must provide an explanation that complies with the Guidelines, TCF Guidelines and any other SC requirements to the Platform Operator.
The Platform Operator may terminate the hosting and/or the Proposal at any time and for any reason, including but not limited to if:
the Issuer or its Authorised Representative breaches these Terms; or
the Platform Operator suspects that the Issuer or its Authorised Representative has committed fraud, been involved in money laundering, other criminal activities or any other improper activities; or
the Issuer or its Authorised Representative uses the Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from using the Platform; or
the Issuer becomes insolvent; or
the Issuer or its Authorised Representative uses the Platform in any of the following ways:
in any way that causes, or is likely to cause, the Platform or access to it to be interrupted or damaged in any way;
for fraudulent purposes, or in connection with a criminal offence;
to send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or in breach of copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or objectionable; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any “spam”; or
to cause annoyance, inconvenience or needless anxiety to any person.
DISCLAIMERS
Each Issuer and each Investor shall only be permitted to open one account on the Platform.
Access to the Platform is permitted on a temporary basis subject to these Terms, other terms and conditions, agreement or rules governing the specific services provided by the Platform Operator. The Platform Operator reserves the right to terminate, withdraw, amend or suspend the service provided or the account on the Platform without notice. The Platform Operator will endeavour to allow uninterrupted access to the Platform, but access may be suspended, restricted or terminated from time to time. The Platform Operator shall not be liable to the Issuer and Investor 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 Platform Operator shall not be responsible or liable for the content or accuracy of any information or material downloaded or posted by the Users nor shall the Platform Operator be obliged to edit the content downloaded or posted on the Platform. However, the Platform Operator shall retain the right to remove any material or posting made on the Platform at its absolute discretion.
The User shall use the Platform only for lawful purposes and in a way which does not infringe the rights of any other person or restrict or inhibit any person’s use or enjoyment of the Platform. The User shall not use the Platform or any information accessible on or obtained from it for the purpose of canvassing or soliciting any person or enticing any person away from using the services on our Platform.
Each User warrants that it has taken all reasonable precautions to ensure that any data it uploaded or otherwise submitted to the Platform is free from viruses, Trojans, worms or other material which may have a contaminating or destructive effect on any part of the Platform.
The Platform Operator accepts no responsibility or liability for the User’s use of content on the Platform and such use is entirely at the User’s own risk. While the Platform Operator takes reasonable precautions to prevent the existence of computer viruses or other malicious programs on the Platform, the Platform Operator accepts no liability for them if they do exist. The User shall use, update and maintain appropriate antivirus software on their computer.
LIABILITY
The User shall be liable to the Platform Operator for any loss or damage, costs, expenses, liabilities, fines, penalties, demands, or claims of any nature whatsoever suffered by the Platform Operator as a result of any breach of these Terms or the fraudulent use of the Platform by the User or its employees, officers, servants, agents or representatives.
The User agrees to indemnify the Platform Operator against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by, arising out of or in connection with any breach by the User or its employees, officers, servants, agents or representatives of these Terms and other terms and conditions as may be formulated from time to time by the Platform Operator.
The Platform Operator shall not be liable to the User for any loss or damage, costs, expenses, liabilities, fines, penalties, demands, or claims of any nature whatsoever which the User may suffer as a result of using the services provided via the Platform, or posting the Proposal, Offer Documents or hosting on the Platform except where such loss or damage arises from the Platform Operator’s breach of these Terms or was caused by negligence, wilful default or fraud by the Platform Operator or its employees.
The Platform Operator makes no warranties or representations and assume no liability in respect of the User for the content of the Proposal, Offer Documents and Hosting or the validity of the investment structure detailed in the Proposal, Offer Documents and Hosting or its compliance with any and all legal and regulatory requirements or any other documents submitted to the Platform Operator. The Platform Operator strongly advises the User to seek independent advice in respect thereof and the User shall be personally liable for all costs and expenses in respect of such advice.
The User acknowledges that successfully passing the Review, or the investment in the Issuer by the Platform Operator or any company in its group or any person connected or associated with the Platform Operator, is not an indication of approval of the Proposal, Offer Document and Hosting generally and the User confirms that it shall not rely on or take any inference from the same.
GENERAL
Nothing herein shall be construed to create a partnership, joint venture, agency or employment relationship between the parties. No party has authority to enter into agreements of any kind on behalf of the other Party.
No failure on the part of any party to exercise and no delay on the part of any party in exercising any right hereunder will operate as a release or waiver thereof, nor will any single or partial exercise of any right under these Terms preclude any other or further exercise of it.
No remedy conferred by any of the provisions of these Terms is intended to be exclusive of any other remedy which is otherwise available at law, in equity, by statute or otherwise, and each and every other remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity, by statute or otherwise. The election of any one or more of such remedies by any of the parties shall not constitute a waiver by such party of the right to pursue any other available remedies.
The Platform Operator reserves the right to amend, vary and/or supplement these Terms from time to time. Any amendments, variations and/or supplements to these Terms shall be effective when posted on the Platform. The User’s continued use of the Platform on or after the date on which such amendments, variations and/or supplements come into effect shall be construed as the User’s agreement to be bound by the amended Terms.
The communications between the Platform Operator and the User shall be made through the Platform, or mailed, personally delivered, faxed or emailed to the recipient at the current address held in the Platform Operator’s record.
These Terms shall be binding upon the respective successors-in-title and permitted assigns of the parties. The User shall not assign or transfer its rights, title, interests and benefits under these Terms or any of its liabilities and obligations hereunder without the prior written consent of the Platform Operator.
Insofar as these Terms are inconsistent with any other terms and conditions, agreement or rulebook established by the Platform Operator to govern the specific service provided to the User, the more relevant and specific terms or document shall apply.
If any provision of these Terms or part thereof is or may become under any written law, or is found by any court or administrative body or competent jurisdiction to be illegal, void, invalid, prohibited or unenforceable then:
such provision or part thereof shall be read down or severed only to the extent of such illegality, voidness, invalidity, prohibition or unenforceability;
the illegality, voidness, invalidity, prohibition or unenforceability of any provision or part thereof in any jurisdiction shall not affect the legality, validity or enforceability of any other provision or of that provision in any other jurisdiction, and the remaining provisions of these Terms shall remain in full force and effect; and
the parties shall use their respective best endeavours to negotiate and agree on a substitute provision which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking.
The Parties hereby agree that the provisions contained in these Terms and other terms and conditions as may be formulated by the Platform Operator from time to time shall constitute the entire agreement between the parties in respect of the subject matter of these Terms and supersede all previous memoranda, expectations, understandings, communications, representations and agreements whether oral or written between them in respect of the subject matter hereof.
These Terms shall be governed by and construed in accordance with the laws of Malaysia.
In the event any dispute or difference shall arise amongst the Platform Operator and the User and/or between the Users as to the construction of these Terms or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, including any question regarding its existence, validity or termination, such dispute or difference shall be submitted to a single arbitrator to be appointed by the parties in dispute or, failing agreement within 14 days after either party in dispute has given to the other party in dispute a written request to concur in the appointment of an arbitrator, a single arbitrator to be appointed by the Chairman for the time being of the Asian International Arbitration Centre (“AIAC”) and such submission shall be a submission to arbitration in accordance with the Rules of the AIAC as presently in force by which the Parties in dispute agree to be so bound. The place of arbitration shall be Malaysia and the arbitration shall be conducted wholly in the English language.
Last Updated: 27 February 2024 (v1.1)