Last updated: September 2024
The Company is looking to raise investment and has agreed to engage the Partner to provide the Services (as defined in clause 1.2) on the basis of this agreement (including the Partner T&C) and is entered into when accepted by the Company.
AGREED TERMS
1. Interpretation
The following definitions and rules of interpretation apply in this Agreement.
1.1 Definitions in this Agreement:
Partner T&C: The list of key commercial terms and conditions highlighted against the Partner’s profile within the ThatRound Platform at the time of engagement and recorded in the ThatRound Platform.
Partner Platform: an online web based platform that may be used by the Partner to promote the Company’s investment round to Prospective Investors.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Closing: the successful completion by the Company of any transaction with a Prospective Investor introduced to the Company by the Partner.
Commencement Date: has the meaning given to it in clause 11.
Equity Investment: an investment (‘the Investment Sum’) by way of subscription for shares in the capital of the Company, the entering into of any convertible debt instrument by the Company in favour of a Prospective Investor, or any other instrument or arrangement between the Company and a Prospective Investor resulting in the ownership of shares in the Company. In this paragraph, all references to the Company shall include all companies, vehicles or other entities associated or affiliated with the Company or in which the Company has a material interest.
Equity Success Fee Payment: has the meaning given to it in clause 7.3.
Fee: means any of the Upfront Fee, Monthly Retainer, Success Fee Payment or Follow-on Success Fee Payment.
Follow-on Success Fee Payment: has the meaning given to it in clause 7.2.
Introduction: the facilitation or procurement of meetings or conversations (whether via the ThatRound Platform, in person, by email or any other means) or correspondence between the Company and a person who is interested in investing in the Company. Introduce, Introduces and Introduced shall be interpreted accordingly.
Introduction Date: for each Prospective Investor, the date during the term of this agreement on which the Partner first Introduces such Prospective Investor to the Company via the ThatRound Platform.
ThatRound Platform: is the ThatRound Platform available via the Internet at the URL www.thatround.com.
Prospective Investor: an individual, institution or any legal entity not previously known to the Company or with whom the Company has not at any time previously been involved in discussions (excluding any discussions held as a result of any act of the Partner) in relation to any investment in the Company in the six months before the Introduction Date. All references to a Prospective Investor shall include all companies, vehicles or other entities associated or affiliated with the Prospective Investor or in which the Prospective Investor has a material interest.
Relevant Investment: an Equity Investment, a loan, a debt security, a debt provision or facility and any other investment of funds or other valuable consideration.
Relevant Period: the time period defined as that which is up until date of termination of this agreement plus the Lock-up Period.
Success Fee Payment: has the meaning given to it in clause 7.1
Term: the time period defined as that which is up until the Commencement Date plus the Contract Period.
Third Party Investor: has the meaning given to it in clause 5.4.
1.2 Definitions of the Partner T&C as displayed in the ThatRound Platform:
Bespoke Terms: The list of terms and clauses summarised under “Bespoke Terms” in the Partner T&C, if applicable.
Contract Period: The time period referred to under “Term” in the Partner T&C.
Lock Up Period: The time period referred to under “Lock-up Period” in the Partner T&C.
Notice Period: The time period referred to under “Notice Period” in the Partner T&C.
Follow-on Period: The time period referred to under “Follow-on Period” in the Partner T&C, where applicable.
Success Fee Percentage: The percentage value referred to under “Success Fee” in the Partner T&C.
Equity Success Fee Percentage: The percentage value referred to under “Equity Success Fee” in the Partner T&C, where applicable.
Exclusivity Status: the status displayed under “Exclusivity” in the Partner T&C, which will be either “Yes” or “No”.
Follow-on Success Fee Percentage: The percentage value referred to under “Follow-on Success Fee” in the Partner T&C.
Upfront Fee: The value in GBP displayed under “Upfront Fee” in the Partner T&C.
Monthly Retainer: The value in GBP displayed under “Monthly Retainer” in the Partner T&C.
Financial Regulations Disclaimer: The text displayed under “FCA Disclaimer” in the Partner T&C.
Services: The list of services summarised under “Services” in the Partner T&C.
VAT Status: the status displayed under “VAT” in the Partner T&C, which will be either “Yes” or “No”.
1.3 A reference to writing or written includes e-mail or communications over the ThatRound Platform.
1.4 A reference to person includes a reference to natural person, corporate or unincorporated body (whether or not having a separate legal personality).
2. Partner Services
2.1 The Partner will provide the Services to the Company during the Term on the basis of this agreement and the Partners T&C set out on the Thatround Platform.
2.2 In all dealings with Prospective Investors, the Partner will be acting as agent on behalf of the Company and not as principal. The Partner will have no authority to bind the Company. The parties further agree not to circumvent each other or behave in any way that might result in the other Party being disadvantaged commercially, financially or otherwise.
2.3 For the avoidance of doubt, the Partner does not guarantee that any introduction it makes to Prospective Investors will lead to a successful concluded investment into the Company.
3. Obligations of the Company
3.1 The Company must at all material times act in good faith towards the Partner.
3.2 The Company shall provide the Partner at all material times with the information the Partner reasonably requires to carry out its duties.
3.3 The Company authorises the Partner to discuss the Company’s business and fundraising plans with Prospective Investors.
3.4 The Company agrees to make promptly available to the Partner any information, assistance and documentation which it may reasonably require for the purpose of carrying out the Services. The Company agrees that all documentation provided to the Partner in connection with the Services will not be false or misleading and that all statements made or expressions of opinion, expectation or intent made by the Company will be honestly held and made on reasonable grounds. The Company undertakes if anything occurs to render the aforementioned false or misleading the Company will notify the Partner as soon as practicable. The Company agrees to advise the Partner in advance of any significant steps that the Company (including agents or other business partners) propose to take in relation to the Services.
3.5 The Company agrees to keep the Partner regularly informed of conversations with Prospective Investors introduced by the Partner and to provide such an update via the use of the ThatRound Platform in a timely manner.
3.6 The Company shall inform the Partner within 2 Business Days of the Closing of a investment transaction with any Prospective Investor in accordance with clause 8.
4. Use of Partner Platform
If the Partner makes use of its own proprietary Partner Platform, then the Company will separately adhere to the Terms and Conditions of the Partner Platform.
5. Introductions
5.1 The Company appoints the Partner to identify Prospective Investors for the Company and to make Introductions of such persons on the terms of this agreement.
5.2 The Partner shall:
(a) use its reasonable endeavours to make Introductions of Prospective Investors; and
(b) report to the Company from time to time on progress made with Prospective Investors.
5.3 The Partner shall have no authority, and shall not hold himself out, or permit any person to hold itself out, as being authorised to bind the Company in any way and shall not do any act which might reasonably create the impression that the Partner is so authorised. The Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Company.
5.4 If a Prospective Investor is introduced to the Company by the Partner and such Prospective Investor introduces the Company to a third party who as a consequence of the introduction to such third party (a “Third Party Investor”), the Company shall inform the Partner of such Introduction. If a Third Party Investor then makes a Relevant Investment in the Company during the Relevant Period, the Partner shall, by virtue of the initial introduction to the Prospective Investor, be deemed to have Introduced the Third Party Investor to the Company and for all purposes the Third Party Investor will be deemed to be a Prospective Investor.
6. Simple Remuneration
6.1 The Company shall pay the Partner the Upfront Fee on the Commencement Date via the ThatRound Platform.
6.2 The Company shall pay the Partner the agreed Monthly Retainer on a monthly basis, commencing on the Commencement Date, and all payments will be made via the ThatRound Platform.
7. Success Fee Remuneration
7.1 If a Prospective Investor Introduced by the Partner enters into a Relevant Investment during the Relevant Period, the Company will pay the Partner at the time of Closing of such transaction, via the ThatRound Platform, a Success Fee Payment (the “Success Fee Payment”) equal to the value in GBP of the Relevant Investment multiplied by the Success Fee Percentage.
7.2 If any further Relevant Investment is made by a Prospective Investor introduced by the Partner, and that transaction occurs within a period of time after the first investment, shorter than the Follow on Period the Company will pay to the Partner at the time of Closing of such transaction, via the ThatRound Platform, a Follow-on Success Fee Payment (the “Follow-on Success Fee Payment”) equal to the value in GBP of the Relevant Investment multiplied by the Follow-on Success Fee Percentage.
7.3 If a Prospective Investor introduced by the Partner enters into a Relevant Investment during the Relevant Period, at the time of Closing of such transaction, the Company will be liable to issue to the Partner equity, warrants, options or any equity-like instruments to subscribe for a number of ordinary shares in the Company at a price per share equal to the price per share paid by the relevant Prospective Investors, such that the total value of the subscription is equal to the Equity Success Fee Percentage multiplied by the value in GBP of the Relevant Investment (the “Equity Success Fee Payment”). The choice of the equity-like instrument will be at the Partner’s sole discretion.
7.4 For the avoidance of doubt, the Company has sole discretion as to whether to accept investments from any Prospective Investors.
8. Enforcement
8.1 The Company shall notify the Partner if a Prospective Investor introduced by the Partner enters into a Relevant Investment during the Relevant Period.
8.2 If a Success Fee Payment, Follow-on Success Fee Payment, Monthly Retainer, or Equity Success Fee Payment is not paid 30 Business Days after becoming payable interest shall accrue and payable on such amount at 4% above the Bank of England base rate from time to time provided that this shall always be a positive number if the base rate is below zero. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
8.3 The Company shall keep separate accounts and records giving correct and adequate details of all Relevant Investments received by the Company from any Prospective Investors introduced by the Partner. The Company shall permit the duly appointed representative of the Partner at all reasonable times after the date of this agreement to inspect all such accounts and records and to take copies of them.
8.4 If the Partner has reason to believe a Success Fee Payment, Follow-on Success Fee Payment or Equity Success Fee Payment is due, and the Company has not marked such Relevant Investor as Closed within the ThatRound Platform, the Partner has the right to notify ThatRound’s investigation team accordingly.
9. Multiple Pricing Tiers
Where the Partner has multiple pricing tiers within the ThatRound Platform, the Partner T&Cs relevant in this Agreement will be those that apply to the tier selected by the Company when engaging via the ThatRound Platform.
10. Payments & Invoices
10.1 All payments of any Fee due from the Company to the Partner will be made via the ThatRound Platform and ThatRound has the right to charge the card on account for any fees the Company agrees to as a result of this Agreement or future interaction with the platform.
10.2 If the Partner’s VAT Status is “Yes” then VAT shall be applied to all Fees, otherwise there will be no VAT charged.
11. Commencement and Duration
11.1 This agreement shall commence on the date at which it is digitally adhered to by the Company via the ThatRound Platform (the “Commencement Date”).
11.2 This agreement shall continue, unless terminated in accordance with clause 12, for the Term.
12. Termination
12.1 This agreement may be terminated in case the following occurs:
(a) immediately in case one of the parties breaches this agreement and is unable to remedy the breach within a period of 30 days after having been given notice of such breach by the other party;
(b) at any given time by providing a written notice to the other party within the Notice Period.
12.2 Notwithstanding the termination of this Agreement for any reason, the Company will still be liable to pay any Success Fee Payment, Follow-on Success Fee Payment or Equity Success Fee Payment for any Relevant Investment received after termination within the Relevant Period.
13. Renewal
Upon the end of the Term of the Agreement, this Agreement will not be automatically renewed, however the Parties can renew the agreement by using the ThatRound Platform.
14. Exclusivity
14.1 If the Exclusivity Status is “Yes”, then:
(a) The Company agrees that during the term of this agreement, the Company shall not enter into, negotiate, or solicit any agreements, contracts, or arrangements with any other third parties that are the same as, similar to, or in competition with the terms and objectives set forth in this agreement being to raise investment for the Company, without the prior written consent of the Partner.
(b) The Company warrants that it has not entered into any prior agreements or understandings with any other third parties that would conflict with the exclusive nature of this agreement.
(c) Any breach of this exclusivity provision by the Company shall be considered a material breach of this agreement, entitling the Partner to terminate this agreement and seek any and all remedies available under law.
14.2 If the Exclusivity Status is “No”, then the parties agree and understand that this agreement is not exclusive and that the Company is entitled to enter into other similar agreements with other parties.
15. Financial Regulation
15.1 If the Partner has a green check mark against its name within the ThatRound Platform, this means that the Partner is either authorised by the Financial Conduct Authority (FCA) or is an Appointed Representative of an Authorised Firm.
15.2 If the Partner does not have a green check mark against its name within the ThatRound Platform, then the Partner is not authorised by the Financial Conduct Authority nor is it an Appointed Representative of an Authorised Firm.
15.3 It is the duty of the Company to seek legal advice and make an assessment as to whether the Partner they engage with for the Services requires Authorisation by the FCA.
15.4 The Financial Regulations Disclaimer applies to the Company on behalf of the Partner.
16. Confidentiality
16.1 Each party undertakes that it shall not at any time, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other, except as permitted by clause 16.2.
16.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 5; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
16.4 All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the Partner from the Company shall be returned promptly to the Company on termination of this agreement or destroyed or erased, and no copies shall be kept.
17. Ownership
The Parties agree that all work created by the Partner in terms performing the Services will remain the exclusive property of the Company, who can use it without any restrictions.
18. Expenses
The Company will not be liable for any out-of-pocket expenses incurred by the Partner in the performance of the Services unless they are approved in advance by the Company.
19. Bespoke terms and Conditions
The Bespoke Terms apply in addition to this agreement and are binding between the Company and Partner.
20. Data Protection and Privacy
20.1 The Partner will will comply with all requirements of the Data Protection Legislation applicable to them in consequence of the delivery of the Services.
20.2 The Partner may appoint third party processors to process personal data for the purpose of this agreement and may share the Company’s data with ThatRound, provided that such processors: (a) agree in writing to process that personal data in accordance with the Partner’s documented instructions; (b) implement appropriate technical and organisational security measures to protect the personal data; and (c) otherwise that they will process the personal data in a manner that will meet the requirements of the DPA 2018
21. Warranties & Indemnification
21.1 The Partner makes no express or implied warranties or representations in relation to any of the Services pursuant to this Agreement and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
21.2 The Company shall indemnify the Partner 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 (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Partner arising out of or in connection with any claim made against the Partner by any third party concerning acts or omissions of the Company relating to this agreement, in particular in respect of the Company’s breach of the terms of this agreement or an infringement by the Company of a third party’s Intellectual Property Rights.
21.3 Neither the Partner nor any connected person to the Partner will have any liability whatsoever (whether in contract, tort or otherwise) to the Company for or in connection with things done or omitted to be done pursuant to this Agreement other than arising out of the negligence or wilful default of the Partner.
22. Limitation of Liability
22.1 The Partner shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation (whether innocent or negligent) or otherwise, even if foreseeable, in connection with the services provided under this agreement, including but not limited to:
(a) the Company’s use of the ThatRound Platform or use of or reliance on any content whatsoever displayed on the Partner Platform or any other matter whosoever arising from the Company’s acceptance of the terms of use;
(b) any discussions, investments or agreements of the Company with Prospective Investors.
22.2 Nothing in this Agreement limits or excludes the Partner’s liability for:
(a) death or personal injury resulting from negligence; or
(b) any fraud or fraudulent misrepresentation.
23. Consequences of Termination
On termination of this agreement, any Fee still owed to the Partner by the Company shall remain payable as shall the Partner’s entitlement to receive any Success Fee Payment, Follow-on Success Fee Payment or Equity Success Fee Payment which arises after termination of this agreement, but lies within the Relevant Period.
24. Dispute Resolution
If the Company has a complaint about any of the Services provided under this Agreement please contact the Partner as soon as reasonably possible via the ThatRound Platform. The Partner shall use every effort to resolve the issue as soon as reasonably practicable.
25. Notices
25.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address, usual place of business, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as notified from time to time.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received on the Business Day following the date of sending or (if shown by a delivery receipt obtained by the sender) at the time of transmission.
26. Entire agreement
26.1 This agreement and any Bespconstitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
26.2 Nothing in this clause shall limit or exclude any liability for fraud.
27. Severability
In an event where any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, then the remaining provisions will remain to be enforced in accordance with the Parties’ intention.
28. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
29. No Waiver
Failure to exercise, or any delay in exercising, or a single or partial exercise of any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
30. Assignment
Neither party shall be entitled to assign or transfer their rights, liabilities, benefits, and obligations under this Agreement save with the consent of the other party.
31. Third party rights
No one other than a party to this agreement and ThatRound Ltd, their successors and permitted assignees, shall have any right to enforce any of its terms.
32. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
33. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
