Last updated: 01 January 2023 (v1.3)
THIS NOMINEE AGREEMENT is made on [ ]
THE PERSON referred to in Schedule 1 (“Crowdfunder”);
PITCH NOMINEES SDN. BHD. (Registration No.: 201601017095 (1188026-P)), a company incorporated in Malaysia with its registered address at 22-1, Jalan Equine 1D, Taman Equine, 43300 Seri Kembangan, Selangor (“Nominee”);
THE COMPANY whose corporate details are set out in Schedule 2 (“Company”).
The Company is seeking to raise funds from Crowdfunders (as defined below) via the Hosting (as defined below) in consideration for such new Shares to be issued and allotted by the Company for the purpose of the Crowdfunding Exercise.
At the request of the Crowdfunder, the Nominee has agreed to hold such number of Shares issued and allotted by the Company as set out in Schedule 1 upon the Company manages to raise the Targeted Amount from Crowdfunders via a Hosting in accordance with the terms and conditions of this Agreement.
The Nominee, Company and other shareholders of the Company entered into a Shareholders Agreement, Share Subscription Agreement and/or Term Sheet (as the case may be), on or prior to the date of this Agreement.
NOW IT IS HEREBY AGREED as follows:
DEFINITIONS AND INTERPRETATION
Unless the context otherwise requires, the following words shall have the following meanings assigned to it:
- means this Nominee Agreement;
- “Business Day”
- means a day (other than a Saturday or Sunday or a public holiday in Kuala Lumpur and Selangor) on which banks are generally open in Kuala Lumpur and Selangor and “Business Days” shall be construed accordingly;
- “Cooling-Off Period”
- means a period of six (6) Business Days after the expiry of the Offer Period;
- means a person who invests in any Hosting on the ECF Platform;
- “Crowdfunding Exercise”
- means an exercise on the ECF Platform to raise funds via the Hosting;
- means Equity Crowdfunding;
- “ECF Funds”
- means the funds raised by the Company from the Crowdfunders via the ECF Platform;
- “ECF Operator”
- means Pitch Platforms Sdn. Bhd. (Registration No.: 201501033144 (1158464-T)), a company licensed by Securities Commission of Malaysia to operate an ECF Platform;
- “ECF Platform”
- means the equity crowdfunding platform at www.equity.pitchin.my and any subdomain thereof operated by the ECF Operator, approved by and registered with the Securities Commission of Malaysia;
- “ECF Platform Agreements”
- “Exit Transaction”
- means any exit transaction which the Company may undertake, including but not limited to initial public offerings (IPO), strategic merger and acquisitions or management buyouts;
- means the offer of the Shares by the Company on the ECF Platform for subscription by the Crowdfunders in consideration of the ECF Funds;
- “Investment Amount”
- means the amount invested by the Crowdfunder into the Company pursuant to the Crowdfunding Exercise;
- “Offer Period”
- means the period during which the Crowdfunders may deposit the ECF Funds into the Trust Account pending for the completion of the Crowdfunding Exercise;
- “Shareholders Agreement”
- means the agreement entered into between the Nominee, Company and other shareholders of the Company on or about the date of this Agreement. For the avoidance of doubt, the Shareholders Agreement may include any or all agreements entered between the shareholders of the Company to govern its relationship and may include shareholders agreement, share subscription agreement, term sheet (as the case may be);
- means the shares offered by the Company to Crowdfunders for the purpose of the Crowdfunding Exercise via the Hosting;
- “Targeted Amount”
- means the targeted amount sought to be raised by the Company in the Crowdfunding Exercise via the Hosting;
- means a third party to which the Transferor purports or intends to transfer the beneficial ownership and interests of the Shares held by the Nominee;
- means a beneficial owner of the Shares who purports or intends to transfer the beneficial ownership and interest of the Shares held by the Nominee to a third party; and
- “Trust Account”
- means the account opened by a trustee appointed by the ECF Operator in the name of such trustee, in which the Investment Amount is held during the Offer Period pending the completion of the Crowdfunding Exercise.
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 this Agreement. 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 otherwise provided, references to Recitals, Clauses and the Schedules are in respect of recitals, clauses and the schedules in this Agreement.
The Schedules shall be taken, read and construed as essential parts of this Agreement. The headings in this Agreement are inserted for convenience only and shall not affect the interpretation of this Agreement.
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.
1.7 The expression “Crowdfunder”, “Nominee” and the “Company” 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 this Agreement any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning.
Any reference to this “Agreement” is a reference to this Nominee Agreement (including the schedules) and any written amendments, supplementals or novations of this Deed from time to time, and includes a reference to any document which amends, waives, is supplemental to or novates the terms of this Agreement.
Any reference to “writing”, or cognate expressions, includes any communication effected via electronic mail, telex, cable, facsimile transmission or other comparable means but shall not include short messaging services, instant messaging services or internet chat.
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.
AGREEMENT TO INVEST
The Crowdfunder hereby agrees to subscribe the Shares on the terms and subject to the conditions set forth in this Agreement and the ECF Platform Agreements and all documents and/or agreements made available on the ECF Platform.
In making the subscription of Shares as mentioned in Clause 2.1 above, the Crowdfunder acknowledges that:
he or she has done so based solely on the information contained in the Crowdfunding Exercise as provided and published by the Company, including but not limited to the Shareholders Agreement and such independent knowledge as the Crowdfunder may have in relation to such investment made without any reliance on the representations made (whether express or implied) by the Company and/or the ECF Operator (if any). For the avoidance of doubt, the Crowdfunder acknowledges that no information and/or documents about the Company other than what is set forth in the Crowdfunding Exercise has been reviewed or approved by the Nominee (including any documents or information prepared and provided by the Company directly to the Crowdfunder); and
he or she has read and understood the ECF Platform Agreements and he or she fully accepts the risks described therein and any other risks inherent in investing in businesses like the Company.
Upon a successful Crowdfunding Exercise, the Crowdfunder wishes for the Crowdfunder's Shares to be registered in the name of and held by the Nominee on the Crowdfunder’s behalf based on the Crowdfunder’s request.
APPOINTMENT OF NOMINEE
Subject to the compliance to Section 56 of the Companies Act 2016, the Crowdfunder hereby appoints the Nominee as the Crowdfunder's nominee with respect to the Crowdfunder's Shares, and the Nominee hereby accepts such appointment, in each case on the terms and subject to the conditions set forth in this Agreement.
The Crowdfunder hereby acknowledges and agrees that the Nominee shall:
hold the Crowdfunder's Shares (together with all dividends, rights, bonuses, interest and other rights as conferred under the Companies Act 2016, constitution of the Company or the Shareholders Agreement to a shareholder of the Company) as nominee of the Crowdfunder; and
have no beneficial interest in the Crowdfunder's Shares except in its capacity as nominee of the Crowdfunder,
in each case subject to the terms and conditions of this Agreement. The beneficial interest to the Crowdfunder’s Shares shall be held by the Crowdfunder.
The Crowdfunder and the Nominee each agree that the relationship between them shall be that of principal and nominee only, that there is no intention to create a relationship of partnership between the Crowdfunder and the Nominee, and that this Agreement should not be construed to create any partnership or other form of joint venture between the Crowdfunder and the Nominee.
For all intents and purposes, although the Nominee shall be the nominee of the Crowdfunder in relation to the Crowdfunder's Shares, the Crowdfunder irrevocably and unequivocally agrees that he or she shall not be entitled to direct the actions of the Nominee in relation to the Crowdfunder's Shares or to call for the transfer of the Crowdfunder's Shares to the Crowdfunder or any other person or to otherwise exercise any rights which the Crowdfunder may have as beneficial owner of the Crowdfunder's Shares, except as expressly provided for in this Agreement.
The Crowdfunder may exercise the right to cancel his or her investment as set out on the ECF Platform at any time during or before the expiration of the Cooling-Off Period (“Cancellation Right”).
If the Crowdfunder exercises his or her Cancellation Right, this Agreement and the nominee arrangement contemplated hereby shall terminate in accordance with Clause 13. The Nominee shall bear no responsibility whatsoever in respect of the refund of the Investment Amount and the Crowdfunder hereby releases and discharges the Nominee in entirety from all claims, damages and causes of action of any kind which may arise as a result of such payment being made to the Company.
AUTHORITY OF THE NOMINEE IN RESPECT OF THE CROWDFUNDER’S SHARES
Upon the issuance of the Crowdfunder’s Shares by the Company in the name of the Nominee, the Nominee shall hold on the Crowdfunder’s behalf the Crowdfunder's Shares and act on matters it believes to be in the best interests of the Crowdfunder in consolidation with the other Crowdfunders, including but not limited to:
casting votes in Annual General Meeting or Extraordinary General Meeting of the Company;
executing or refusing to execute such written resolutions as proposed by the Company;
issuing or refusing to issue consents or approvals, including but not limited to consents or approvals for any future fundraising exercise(s) that the Company may conduct
approving or declining to approve any Exit Transaction;
taking or not taking any other actions to which the Nominee is entitled by virtue of being the legal shareholder of the Crowdfunder's Shares;
such other authorities as conferred to the Nominee by virtue of the Companies Act 2016, the Shareholders’ Agreement or the constitution of the Company being the legal shareholder of the Crowdfunder’s Shares.
For the avoidance of doubt, in taking actions including but not limited to matters as stipulated in Clause 5.1 above, the Crowdfunders hereby irrevocably and unequivocally agree and authorise (in the form of blanket consent) the Nominee to execute any agreements on behalf of the Crowdfunders as the legal shareholder of the Company, if the Nominee believes to be in best interest of the Crowdfunders as a group in entirety in the opinion of the Nominee.
For such authorities as granted to the Nominee by virtue of this Clause 5 herein, the Nominee may but not obligated to inform and consult the Crowdfunders as a group if the Nominee opines that such decision to be made by the Nominee might affect the Crowdfunder’s beneficial interest of the Crowdfunder’s Shares or implicates the Crowdfunders (whether directly or indirectly) and that the Nominee shall adopt the best mode deemed convenient and appropriate by the Nominee in the best interest of the Crowdfunders and that such ultimate decision made by the Nominee shall be final and conclusive in exercising the irrevocable authorities granted to the Nominee by the Crowdfunders.
The Crowdfunder agrees and acknowledges that the Nominee is not obligated to direct, advise or monitor the Company and its business.
In the event of an occurrence of an Exit Transaction, Nominee will facilitate the Exit Transaction until such point where the Shares under the name of the Nominee are deregistered from the register of members with Companies Commission of Malaysia (CCM).
RIGHT TO NOTICES AND VOTES
The Nominee shall within reasonable time arrange for the Crowdfunder to receive details of any meetings of the shareholders of the Company, and any other information issued to shareholders of the Company, if the Crowdfunder at any time in writing requests such details and information.
In the event that the Crowdfunder has requested details of meetings of the shareholders of the Company pursuant to Clause 6.1, the Crowdfunder may request the Nominee to vote on the Crowdfunder’s Shares in such meeting according to the Crowdfunder’s request, subject always to Clause 5.
TRANSFER OF CROWDFUNDER’S SHARES
Subject to the written consent of the Nominee which such consent shall not be unreasonably withheld, the Crowdfunder may request to transfer the beneficial ownership and interest of the Crowdfunder’s Shares (‘Transferor’) to a third party (‘Transferee’). The transfer shall only be valid and effective upon the execution of a share transfer form prescribed by the Nominee and the submission of all such documents and relevant administration fees (if applicable) as may be requested by the Nominee.
Upon signing of the share transfer form, the Transferor will no longer be a party to this Agreement and will no longer hold beneficial ownership and interest to the Shares. The Transferee will acquire beneficial ownership and interest to the Shares and automatically deemed to be bound by the Terms and Conditions set forth in this Agreement.
Transfer of beneficial ownership and interest in the Shares in a Secondary Market shall be subject to procedures as may be specified by the Nominee and/or the ECF Operator from time to time.
DISTRIBUTIONS FROM THE COMPANY
If the Company declares a cash dividend or makes a cash distribution to the holders of its shares, the Parties agree that the Company shall pay the dividends directly to the Crowdfunder (without the Nominee receiving the dividends on behalf of the Crowdfunder) based on the bank information provided by the Crowdfunder. The Nominee shall not be responsible to see to the correct distribution of the dividends. If requested by the Company, the Nominee shall furnish the bank account details of the Crowdfunder based on the information provided to the Nominee (unless updated by the Crowdfunder in writing to the Nominee).
In the event the dividends are paid to the Nominee for its distribution, the Nominee shall, as soon as practicable after receiving such dividend or distribution and without obligation to verify the accuracy of the computation of the dividend, distribute it to the Crowdfunder. In such event, the Company shall bear all bank and administration charges (if any) and taxes in respect of the payment of dividends.
Unless otherwise stated in the Crowdfunding Exercise, as consideration for its services as Nominee of the Crowdfunder in relation to the Crowdfunder's Shares and all other shares held for other Crowdfunders pursuant to the Crowdfunding Exercise, the Nominee shall be entitled to a fee equivalent to RM3,888 per annum (inclusive of Sales and Services Tax, if applicable) ("Management Fee"), unless waived in writing by the ECF Operator. The Company shall be responsible for paying the ECF Operator the Management Fee within seven (7) Business Days of written request by the ECF Operator. The Company shall reimburse the ECF Operator for any disbursements incurred in the performance of its obligations under this Agreement. The Company acknowledges that the ECF Operator may have an upward adjustment to the Management Fee and shall engage in good faith discussions with the Company to agree on such upward adjustment.
OBLIGATIONS OF NOMINEE AND THE CROWDFUNDER
The Crowdfunder acknowledges and expressly agrees that in certain circumstances it may be necessary for the Nominee not to take an action or fulfil an obligation set forth in this Agreement if precluded by a contractual arrangement with the Company which the Nominee has entered into in the belief that such contractual arrangement is in the best interests of the Crowdfunder. The Crowdfunder also acknowledges that the Nominee has like duties to the other Crowdfunders on whose behalf the Nominee acquires and holds shares of the Company and that in determining whether its actions are in the best interests of the Crowdfunder:
the Nominee shall be entitled to regard an action as in the best interests of the Crowdfunder if it regards it as being in the best interests of all the Crowdfunders as a group; and
the Nominee shall be entitled to have regard only to the interests of the Crowdfunder and other Crowdfunders in relation to the shares of the Company held by the Nominee on their behalf, and not in relation to shares in any other company hosted on the ECF Platform that the Crowdfunder may have invested in.
Within six (6) weeks from the issuance of shares by the Company to the Nominee, the Nominee shall issue a certificate to the Crowdfunder setting out the following information:
the number of Shares held by the Nominee on behalf of the Crowdfunder in the Company; and
the corresponding share certificate numbers corresponding to the Shares
For the avoidance of doubt, the certificate shall be delivered to the Crowdfunder only upon receipt of Crowdfunder’s identity documents and any other document as required under the Nominee and/or ECF Operator’s Know-Your-Customer and Anti-Money Laundering policies.
The Nominee shall not be liable to the Crowdfunder, and hereby disclaims to the fullest extent permissible by law all liability, for:
ny losses or damages resulting from or related to actions taken or omitted to be taken by the Nominee in connection with matters contemplated by this Agreement except to the extent that such losses are the direct result of fraud on the part of the Nominee; and
any direct, indirect, consequential, special or punitive loss, damage, cost or expense, unforeseeable losses or damages, loss of profit, loss of business, lost or wasted management time or time of other employees, loss of reputation, depletion of goodwill or loss, damage or corruption of data.
Without prejudice to paragraph 10.3, in no event shall the Nominee be liable to the Crowdfunder for more than the total amount invested by the Crowdfunder in the shares of the Company under whatsoever circumstances pursuant to this Agreement.
The Crowdfunder may be liable to pay taxes on any dividends or other returns received in respect of the Crowdfunder’s Shares, which may vary depending on where the Company is incorporated and has its place of business. The Crowdfunder is entirely responsible for paying any such taxes and the Nominee shall bear no responsibility whatsoever in respect of them (save making any deductions or withholdings which the Nominees is required by the law to make), including, without limitation, notifying the Crowdfunder of any obligations that have or may have arisen.
The Company shall indemnify and keep the Nominee fully indemnified 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 the performance of any act or omission of the Nominee under this Agreement.
The Crowdfunder hereby warrants that the information set out in Schedule 1 are true, accurate and complete and that there are no material omissions. In the event of a change of such information, the Crowdfunder shall send the Nominee written notification of such change within three (3) Business Days of such change. The Crowdfunder acknowledges and accepts that the Nominee shall not be able to perform its obligations without the updated information and the Crowdfunder shall release the Nominee from all liabilities in the event the Nominee performs its obligations based on the outdated information.
REPLACEMENT OF NOMINEE
The Nominee may, at any time and entirely at its discretion, appoint any other person, corporate entity, body or organisation as a replacement Nominee ("New Nominee") provided that the Nominee is satisfied that such New Nominee is competent to perform the obligations of the Nominee under this Agreement, and that the New Nominee agrees to be bound by such obligations, before the departing Nominee can be released from such obligations.
Upon a New Nominee's acceptance of an appointment pursuant to paragraph 11.1:
the New Nominee shall be deemed the Nominee for all purposes of this Agreement, including, without limitation, for receiving any Management Fee and for appointing a further New Nominee, provided, that such New Nominee may choose to make communications and distributions pursuant to methods other than those set forth in this Agreement; and
the departing Nominee shall cease to be the Nominee and shall no longer be bound by this Agreement.
RELEASE OF CROWDFUNDER’S SHARES TO THE CROWDFUNDER
Provided that the Crowdfunder shall bear for the costs and expenses (including the stamp duty) payable for the purported transfer, the Nominee may transfer legal ownership of some or all of the Crowdfunder's Shares to the Crowdfunder or, where relevant, his or her estate at any time if either:
upon request by the Crowdfunder and subject to the written approval by the Company;
the Company fails to settle any outstanding sums of the Management Fee or disbursements payable to the Nominee;
the Nominee concludes that it is no longer in a position to hold and manage such Crowdfunder's Shares in the best interests of the Crowdfunder and in compliance with all applicable laws and regulations, and Nominee has not appointed a New Nominee pursuant to Clause 11; or
it reasonably appears to the Nominee that the Company is likely to be stagnant for the foreseeable future, meaning that it is unlikely to produce significant returns for the Crowdfunder and its other Crowdfunders but does not intend to wind up or its business or otherwise cease to exist.
Any transfer of legal ownership of the Crowdfunder's Shares pursuant to Clause 12.1 will, if the Nominee or the Company requires, be subject to the Crowdfunder or his or her estate agreeing to be bound by the terms of any shareholders' agreement or similar document in place in relation to the Company at the time of transfer.
The Crowdfunder expressly agrees and acknowledges that, in the event that the Nominee exercises its right under Clause 12.1, the Crowdfunder will become the legal, in addition to beneficial, owner of such Crowdfunder's Shares and the Nominee’s obligations as nominee under this Agreement will terminate, and the Crowdfunder recognises that, among other things, this means that he or she would need to incur the administrative and other burdens of managing such Crowdfunder's Shares.
On the initial public offering of the share capital of the Company on a recognised stock exchange, all the Crowdfunder’s Shares shall be listed in the name of the Crowdfunder.
The Nominee may terminate this Agreement by giving not less than three (3) months’ written notice to the Company and Crowdfunder. The Company shall before the expiry of such three (3) months’ written notice appoint a new nominee to perform the obligations of the Nominee as contemplated under this Agreement. In the event a new nominee shall not have been appointed within such three months period, the Nominee shall be permitted to transfer the Crowdfunder’s Shares to the Crowdfunder whereby such costs and expenses incurred (including the stamp duty) for the transfer shall be borne by the Company.
This Agreement shall be terminated upon completion of an Exit Transaction, when the shares in the name of the Nominee are deregistered.
The Crowdfunder shall no longer be bound by the terms of this Agreement upon completion of a transfer of the Crowdfunder’s beneficial interest in the Shares, pursuant to Clause 7 above.
For the purposes of this Agreement and in connection with the Crowdfunder’s use of the Platform and/or the Nominee's acquisition, holding and disposal of the Crowdfunder's Shares as the Crowdfunder's nominee, the Nominee may disclose certain of the Crowdfunder's Personal Data to any if its affiliates or partners which it contracts with or employs in connection with the Nominee’s provision of services (including those based in other jurisdictions), the Company and any person acting on behalf of the Company, to any other Platform Members for whom the Nominee holds shares of the Company, to any tax, statutory or regulatory authority as required by such authority, to any New Nominee or prospective New Nominee, or to any prospective purchaser of the Crowdfunder's Shares, and each of their respective officers, employees and professional advisers. The Crowdfunder must ensure that the Personal Data set out in the Crowdfunder’s profile is correct and up to date.
NO PARTNERSHIP OR AGENCY
This Agreement shall not be construed so as to create a partnership or joint venture between the Parties.
No failure or delay by any Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by any Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of this Agreement and the Parties shall mutually execute such additional documents as may reasonably be required in order to rectify the same. If any provision shall be void, illegal or unenforceable but would be valid and enforceable if a minimum number of amendments are made, then that provision shall be minimally amended to the extent necessary to render the provision valid and enforceable and which would give effect to the intention of the Parties to the maximum extent possible.
This Agreement, together with the information about the terms of the investment set forth in the Crowdfunding Exercise, contains the entire agreement between the Parties, and supersedes and replaces all previous agreements and understandings between the Parties, with respect to the matters set forth herein. Each Party acknowledges that, in entering into this Agreement, it is not relying on any representation, warranty, pre-contractual statement or other provision except as expressly provided in this Agreement.
Each Party's costs and expenses (including professional, legal and accountancy expenses) of the preparation, negotiation and execution of this Agreement and any associated documentation shall be borne by such Party.
The Nominee shall not be liable for any delay in performing its obligations, or failure to perform any such obligations under this Agreement if the delay or failure results from circumstances beyond its reasonable control, including but not limited to, electrical failure on the national grid affecting geographical regions or locations in which the Nominee operates, any other banking payment, communication or information systems, technological failure of any electronic trading platform of an industry wide nature, an Act of God, governmental act, war, armed conflict or civil commotion. Upon the occurrence of any force majeure event, the Nominee shall promptly give written notice of such force majeure event to the Crowdfunder and thereafter the performance of the Crowdfunder’s obligations under this Agreement shall be suspended during that period of force majeure.
This Agreement does not amend or replace the ECF Platform Agreements, the Shareholders’ Agreement, Term Sheet and/ or the Share Subscription Agreement, but to the extent that there is any conflict between this Agreement and a ECF Platform Agreement, this Agreement shall prevail.
This Agreement shall be governed by, and construed in accordance with, the laws of Malaysia.
22.2 It is hereby agreed that any dispute, controversy or claim whatsoever arising out of, in relation to or in connection with this Agreement shall at any time be first settled amicably between the Crowdfunder, senior management of the Company, the Nominee and the ECF Operator by way of negotiation in good faith. A Party requiring a dispute, controversy or claim to be resolved amicably shall notify the other Party in writing (“Dispute Notice”).
In the event that no settlement is reached by the Parties within twenty one (21) days from the date of the notice in Clause 13.1, such dispute, controversy or claim may be referred by either Party to mediation comprising the board of Directors of the Company.
Either party may give notice to the other party of his intention to refer the matter to mediation (“Request for Mediation”). Upon the service of a Request for Mediation on Parties, the dispute or difference shall be subjected to mediation between the Parties as mediated by the board of Directors of theC Company.
If Parties fail to achieve any settlement during mediation, then in the event any dispute or difference shall arise amongst any of the Parties in this Agreement as to the construction of this Agreement 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.
This Agreement shall be deemed duly executed and shall become effective and binding upon the Parties once the Crowdfunder has indicated his or her assent hereto via the means provided on the ECF Platform. Further, this Agreement may be signed in any number of counterparts and by the Parties on separate counterparts, each of which, when so executed, shall be an original, but all counterparts shall together constitute one and the same document. In this regard, the Parties agree that:
This Agreement has been made available on the ECF Platform throughout the Crowdfunding Exercise.
By proceeding with the investment and not exercising the Crowdfunders’ Cancellation Rights, the Crowdfunder is deemed to have accepted the terms of this Agreement; and
For the avoidance of doubt, the Parties agree that no signature is necessary for this Agreement to be deemed duly executed by conduct and binding upon the Parties.
Any notice from the Crowdfunder to the Nominee in respect of this Agreement shall be given by email to [email protected], except where this Agreement or another ECF Platform Agreement that the Crowdfunder executes sets forth alternate means by which the Crowdfunder must give the Nominee notice.
Any notice from the Nominee to the Crowdfunder in respect of this Agreement may be given either through the Platform, by email to the address set forth in the Crowdfunder's profile or by post or courier to the physical address set forth in the Crowdfunder's profile.
Notices given pursuant to this Clause 24 through the Platform or by email shall be deemed received by the recipient upon despatch.
All notices given under this Agreement shall be in the English language.
VARIATION OF TERMS
The terms of this Agreement may be amended from time to time as the Parties deem necessary, provided that such amendments are communicated to the Company and Crowdfunder by way of notice through the Platform or by email, whichever is deemed suitable by the Nominee. The amendments are deemed to take effect on the date of posting of such notice or email by the Nominee.