These “Terms” govern the relationship between PitchedIt (also “we” “us” “our”), and an Investee seeking to raise funds through our Platform (also “you” “your”) (together the “parties”).
1. DEFINITIONS AND INTERPRETATION
In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
“€” or “Euro” means the lawful currency of Ireland;
“Break Fee” has the meaning given to it in paragraph 5.3;
“Business” means the business of the Investee;
“Business Day” means any day other than a Saturday or Sunday and on which the banks are generally open in Ireland;
“Committed” has the meaning given to it in paragraph 2.5;
“Completion” means the event when the Investee successfully raises the investment it is seeking;
“Disintermediation Fee” has the meaning given to it in paragraph 5.3;
“Expired” means the conclusion of the Funding Period and “Expires” shall be construed accordingly;
“Funding Period” has the meaning given to it in paragraph 2.2.2;
“Investee” means the incorporated company seeking to raise funds by way of the Pitch. Permitted Investees are limited to companies incorporated under, and subject to, Irish law;
“Minimum Target Amount” means the minimum investment that the Investee states it wishes to raise by way of the Pitch which shall not be less than €50,000 and not more than €250,000;
“Overfunding Period” has the meaning given to it in paragraph 2.3;
“Pitch” means the fundraising campaign created by or on behalf of the Investee through our Platform, to include such notices and content as may be reasonably required;
“PitchedIt” means the company incorporated in Ireland under company number 697037 and having its registered office at 39 Northumberland Road, Dublin 4;
“PitchedIt Member” means a natural or legal person who has joined the Platform as a member;
“Platform” means the PitchedIt platform, which includes the website currently hosted at the domain http://www.pitchedit.io and all pages at sub-domains thereof;
“Shares” means the equity, equity-like interests or other securities or instruments of the Investee, certain of which will be offered in exchange for investment on a fully-diluted basis, as set out in the Pitch;
“Success Fee” has the meaning given to it in paragraph 5.1;
“Tax Relief” means any tax relief available to investors; and
“Total Invested Amount” has the meaning given to it in 2.7.1.
2.1 Subject to paragraph 9.13, we have a network of service providers with experience in the SaaS industry ranging from design, engineering, marketing, sales, professional services and others. Subject to further agreement between you and such service providers, you may avail of such services to help you build and launch your Business and Pitch.
2.2 The stages that a successful Pitch will go through are as follows:
2.2.1 Validation: Investees will be required to pitch their Business to the PitchedIt Members through the Platform. The PitchedIt Members may rate and provide feedback on the Pitch. Depending on approval rating that the Pitch receives from PitchedIt Members, we may decide to make the Pitch available (subject to section 3) for investment on the Platform. It shall be at our sole discretion as to whether or not a Pitch is to be made available for investment purposes on the Platform.
2.2.2 Funding: For a period of 20 Business Days (not including any extension that might be granted under paragraph 2.8), triggered immediately after the evaluation period referred to in paragraph 2.2.1 has been achieved (the “Funding Period”), PitchedIt Members can invest in your Business under the terms of a SAFE (simple agreement for future equity). If a PitchedIt Member decides to invest in the Business, he or she will indicate how much he or she wishes to invest and the investment will be recorded through the Platform, such funds will not yet be Committed (defined below).
2.2.3 Evaluation: Once the Funding Period is complete, the Pitch will enter the evaluation phase which will last for 5 Business Days. During this phase, all PitchedIt Members who have indicated an interest in investing in the Pitch, during the Funding Period, will participate in a majority vote to decide if your Business has a viable path to success. Criteria such as confidence in the founding team, capital raised and support from service providers may be taken into consideration. During this period, the live status of the vote will be publicly viewable, and the relevant PitchedIt Members’ vote may be changed up until this period concludes.
2.3 If PitchedIt Members have together indicated that they wish to invest an amount which is equal to the Minimum Target Amount prior to the Pitch Expires, the Pitch will enter the “Overfunding Period”. During the Overfunding Period, PitchedIt Members can continue to invest until the Pitch has Expired. In any event, investments shall not exceed, in aggregate, an amount greater than €250,000.
2.4 At any point before the Pitch enters the Overfunding Period, you may request our consent to increase the number or improve the terms of the Shares offered in the Investee. We may grant or withhold this consent at our discretion. For the avoidance of doubt, you may not change the Minimum Target Amount at any time without our consent, which will be at our sole discretion if such consent is granted or refused and subject always to applicable laws.
2.5 Investing PitchedIt Members will have 4 Business Days to cancel their investment before it will be Committed (defined below). Therefore, investments made during the Funding Period, the Overfunding Period and, if applicable, for up to 4 Business Days following these periods are subject to cancellation. Reference in these Terms to amounts being “Committed” means investments that have not been cancelled during this time and which will be available for transfer to the Investee, subject to the Pitch reaching the Minimum Target amount and to section 5.
2.6 Provided that the Committed amounts are together equal to or greater than the Minimum Target Amount, subject to any other agreement between the parties, the Pitch will close on the earlier of the date on which:
2.6.1 You inform us that you would like the Pitch to close; or
2.6.2 The Pitch has Expired.
2.7 Once the Pitch has closed in accordance with paragraph 2.6:
2.7.1 You will confirm how much of the Committed amounts that you will accept (the “Total Invested Amount”). Subject to any other agreement between the parties, you must accept at least the Minimum Target Amount; and
2.7.2 We will transfer the Total Invested Amount (less the Success Fee, as applicable, pursuant to paragraph 5.1) to the Investee in exchange for the Shares which our appointee will hold as nominee on behalf of the investors, but with legal title being registered with our nominated custodian.
2.8 If 90% or more of the Minimum Target Amount is Committed before the Pitch is due to Expire, you may apply for a 5 Business Day extension to allow more time for the Minimum Target Amount to be achieved. It will be in our sole discretion if such extension is granted.
2.9 If the Minimum Investment Amount is not reached before the Pitch Expires, you will receive no investment, each investor will receive the amount of his or her investment credited back to his or her account, and the proposed transaction will be deemed terminated. You shall be liable for any reasonably incurred processing fees in respect of this paragraph 2.9 (see paragraph 9.15).
2.10 The Shares held by our appointed nominee can be made available for sale and purchase on the bulletin board on the Platform structure subject to variable pricing, unless otherwise agreed.
3. FUNDRAISING SUITABILITY
3.1 During, or any time after the validation process set out in paragraph 2.2.1, you may be required complete a fundraising suitability assessment on the Platform, where you will be required to provide general details and documentation about the Business and the Investee.
3.2 During the period referred to in paragraph 3.1, we may conduct a legal due diligence investigation on the Business, the Investee and its officers, and/or any other persons that we believe should be subject to such due diligence.
3.3 We will then make one of the following determinations, which will be in our sole discretion and as we deem appropriate:
3.3.1 Authorise you to proceed with the Pitch on the Platform;
3.3.2 Ask you to provide further information about the Investee, the Business or the Pitch.
3.3.3 Inform you that the Pitch is not suitable to fundraise on the Platform, at which point it will be discontinued.
4. PROMOTION SUPPORT
4.1 Subject to your successful validation and in accordance with paragraph 3.3.1, we will promote your Pitch through email sent from us to PitchedIt Members, and on PitchedIt’s active social media accounts, at the following milestones:
4.1.1 On your Pitch’s successful validation as per paragraph 2.2.1;
4.1.2 When your Pitch reaches a raise threshold of €50,000; and
4.1.3 3 Business Days before your Pitch is due to Expire.
5.1 Generally, our fees are by way of “Success Fee” on Completion, are as follows:
5.1.1 In consideration of our services in approving and promoting the Pitch and for making it available to PitchedIt Members through our Platform, our fee equal to 7% of the greater of the Minimum Target Amount and Total Invested Amount.
5.1.2 Our nominee partner’s initial €2,000 administrative fee, €2,000 annual administrative fee and €3 per investor fee.
5.1.3 You agree to issue, and we agree to subscribe for ordinary shares representing 2% of the entire issued share capital of the Investee as at the date of Completion. You agree to obtain the necessary consents, waivers, approvals and pass such resolutions, hold such board meetings, execute such documentation and to generally carry out such other acts as necessary to give effect to this paragraph 5.1.3.
5.2 Payment of the proportion of the Success Fee, set out in paragraphs 5.1.1 and 5.1.2, will be deducted from the Total Investment Amount before we transfer it to your nominated bank account.
5.3 To protect from misuse of the Platform, in limited circumstances we may also charge you a “Disintermediation Fee” and/or a “Break Fee” as follows:
5.3.1 Disintermediation Fee: In addition to the Success Fee, if a PitchedIt Member who has viewed the Pitch or any part thereof makes an investment in the Business other than through the Platform at any time within 12 months after the date that you submitted the Pitch, you will pay to us a fee of 7% of the amount of money such person invests, becoming immediately due upon your receipt of the investment and will be subject to interest of 2% per month until such amount is duly paid.
5.3.2 Break Fee: In consideration of the work we have performed and the value we have created for the Business, you will pay us a Break Fee equal to 7% of the Minimum Target Amount or Total Invested Amount, whichever is greater, if (a) you are in breach of provisions of paragraph 9.6 or 9.12 or (b) you decide not to proceed with the investment. Payment of the Break Fee will become due immediately upon our notification to you, and it will be subject to interest of 2% per month until such amount is duly paid.
6. TAX RELIEF
6.1 If you indicate, as part of your Pitch, that investments made through the Pitch will be subject to Tax Relief, it is your responsibility to take any relevant actions to ensure that such Tax Relief will apply.
6.2 We shall not be liable to you, and you shall be solely liable to the relevant PitchedIt Members, in any action or claim for your breach of paragraph 6.1. You hereby indemnify us against all such actions.
7.1 These Terms shall continue in full force and effect, and shall be binding on the parties unless:
7.1.1 We inform you that the Pitch is not suitable to raise funds on the Platform pursuant to paragraph 3.3.3;
7.1.2 The investment is otherwise not completed subject to paragraph 5.3; or
7.1.3 As may be otherwise agreed between the parties.
7.2 Any termination of these Terms does not affect the rights of the parties in respect of any prior breaches of the provisions hereto.
7.3 All provisions of these Terms shall survive termination if, by their nature, are intended to survive such termination.
8. OUR LIABILITY
8.1 We shall not be liable to you, and hereby disclaim to the fullest extent permissible by law all liability, for:
8.1.1 Any losses or damages resulting from or related to actions taken or omissions by us pursuant to these Terms, except to the extent that such losses are the direct result of fraud, wilful default or gross negligence on our part;
8.1.2 All claims, damages, and causes of action of any kind which may arise in connection with investment by any PitchedIt Member in the Investee; or
8.1.3 Any 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.
8.2 You hereby indemnify us against all such events anticipates set out in paragraph 8.1.2.
9. GENERAL TERMS AND UNDERSTANDINGS
9.1 The Platform is a platform for connecting certain businesses with potential investors and is not an underwriter or placing agent of any sort. Accordingly, we are under no obligation to procure or to use any efforts to procure investment for you.
9.2 At any given time, we may approve and post campaigns of any number of businesses, including other businesses that are similar to or competitive with your Business, and the fact that we approve and post such campaigns may mean that some investors choose to invest in businesses other than you.
9.3 You are creating the Pitch with the aim of raising investment capital for the Investee, and you intend that any capital raised through the Platform will be used for the purpose of furthering the Business as described in the Pitch.
9.4 The person(s) that you appoint or will appoint to act on behalf of the Investee is a legitimate representative, has the authority to speak and act on behalf of the Investee and bind the Investee to these Terms and any documents related hereto.
9.5 The statements that you provide in the Pitch will be complete, accurate, truthful and not misleading and there will be no revealed facts whose omission renders the information provided misleading, it being understood that we and PitchedIt Members will rely on completeness, accuracy and truthfulness of such information. Furthermore, if within a reasonable period of time after such information has been provided, it should prove to be, for any reason, incomplete, untrue, inaccurate or misleading, you will promptly notify us and take staps to amend such statements accordingly.
9.6 The parties shall from time to time (both during the continuance of these Terms and after termination, as applicable) do all such acts and execute all such documents as may be reasonably necessary to give effect to the provisions of these Terms and the Pitch (as applicable). The provisions of this paragraph 9.6 shall also apply to any other such regulatory, or other such requirements, that may apply to you from time to time.
9.7 Subject to section 5, the parties’ professional services costs and expenses of the preparation, negotiation and execution of any agreement or documentation relating to these Terms shall be borne by each of the parties respectively.
9.8 The parties shall not be in breach of these Terms and shall not be liable or have responsibility of any kind for any loss or damage incurred as a result of events or reasons beyond the parties’ respective reasonable control.
9.9 The parties shall be deemed to have duly executed these Terms when you affirm assent by the means provided by us on the Platform or otherwise.
9.10 Any notices between the parties in respect of these Terms or your Pitch shall be given through the Platform and will be deemed to have been received at the time of delivery.
9.11 Nothing in these Terms shall act as any guarantee of the success of your Pitch or the level of investment that you will receive. Even if we approve your Pitch, it may not receive Committed investment of at least the Minimum Target Amount and, if it does not, you will not receive any investment.
9.12 You are not relying on, and shall have no remedies in respect of, any representation, warranty, pre-contractual statement or other provision except as expressly provided in these Terms.
9.13 While your Pitch is in the process of the stages listed under paragraphs 2.2.1 to 2.2.2, you will not, for a period of 6 months, list the Pitch or seek investments through another crowdfunding provider or raise any other investment, other than with our prior written consent.
9.14 We do not provide investment, legal, regulatory, financial, tax or consultancy advice of any kind and nothing in these Terms or any part of your engagement with us constitutes such advice. If you wish to seek such advice, we can assist with this as per paragraph 2.1, Otherwise, you should consult a professional independent advisor. We are not liable in respect of the services provided to you by any external adviser(s) engaged as per paragraph 2.1.
9.15 Crowdfunding is not currently a regulated activity in Ireland, and no Irish legislation applies directly to crowdfunding services being carried on in Ireland. It is our intention to apply for authorisation to the designated competent authority when crowdfunding becomes a regulated activity in Ireland.
9.16 Payment processing services on the Platform are provided by Stripe and you agree to be subject to the relevant Stripe terms and conditions including Stripe’s payment processing fees. We are not liable for the actions of Stripe, or the fees due and owing to Stripe by you.
9.17 These Terms, their subject matter and their formation, are governed by the laws of Ireland. You agree that the courts of Ireland will have exclusive jurisdiction. However, we at our sole discretion may bring legal proceedings in any other jurisdiction, including the jurisdiction where you are domiciled or based, to recover fees or other sums payable to us.