cap! Equity Management (PTY) LTD Customer Terms of Service
Last Modified: September 2022
These Customer Terms of Service (the “Customer Terms”) describe the rights and responsibilities of Customers when accessing the Cap Equity Platform and using the Cap Equity Services.
Acceptance of the terms of service
These Customer Terms are entered into by and between Customer and Cap Equity Management Pty Ltd (“Cap Equity”). These Customer Terms, together with any Other Contracts that apply, together form the binding “Agreement” between Customer and Cap Equity governing Customer’s access to the Platform and use of the Services.
Please read these Customer Terms carefully before you start to use the Platform. By using the Platform or by ticking a checkbox to accept or agree to these Customer Terms when this option is made available to you, you accept and agree to be bound and abide by the Agreement on behalf of Customer.
If you do not agree to these Customer Terms, you must not access the Platform or use the Services.
If relevant, please make sure you have the necessary authority to enter into the Agreement on behalf of the organisation that you represent before proceeding. These Customer Terms must be treated as being qualified, to the extent necessary, to ensure compliance with all applicable laws.
Capitalized terms shall have the following meanings:
"Cap Equity", "we", or "us" means Cap Equity Management (Pty) Ltd and its affiliates and subsidiaries;
“Content” means all of the content hosted on the Platform, including but not limited to still images, text, video, graphic designs, audio recordings, multimedia programmes, computer programmes, software, algorithms, and proprietary methodologies for company administration, investigating fundraising opportunities, managing investments, investigating investment opportunities, reporting valuations as well as share register information and share certificates and other services;
“Customer” means the Issuer or the Investor;
“Customer Content” means all content belonging to Customer that is provided to Cap Equity or uploaded by Customer so that it is hosted on the Platform, including, in the context of an Issuer, information about the Issuer’s business (for example, employee information, assets, financial and tax information, the business valuation and its investors including their shareholding and cost of investment);
“Data Processing Agreement” means the data processing agreement located at www.cap-equity.com/data-processing-agreement;
“Investor” means the entity or individual making use of the Platform to evaluate investment opportunities and/or manage their existing investments;
“Issuer” means the corporate entity making use of the Platform to house company and shareholder information, to communicate with existing and new shareholders, to investigate fundraising opportunities and for general company administration;
“Platform” means the Cap Equity company administration and investor platform located at www.cap-equity.com;
“Other Contracts” means other agreements (including agreements with respect to fees concluded on the Platform) that Customer has entered into with Cap Equity for services provided by Cap Equity; and
“Services” means the services supplied by Cap Equity to Customer being the provision of the Platform and its Content, and includes the non-exclusive license to make use of these Services for the duration of the Agreement and in accordance with its terms;
“User(s)” means the individual(s) that Customer has invited to access the Platform and/or to use the Services, or, where the Investor (and therefore Customer) is an individual, that individual.
Changes to the terms of service
We may revise and update these Customer Terms from time to time in our sole discretion. If we make a material change to these Customer Terms, we will provide Customer with reasonable notice in advance of the change. All changes are effective immediately when we post them. Customer’s continued use of the Platform or the Services following the posting of revised Customer Terms means that Customer accepts and agrees to the changes. Customer is expected to check this page from time to time so that Customer is aware of any changes, as they are binding on Customer.
Conflicts with other terms and conditions
Customer’s access to the Platform and use of the Services may be governed the Other Contracts that Customer has entered into with us, including agreements with respect to fees. Customer’s access to the Platform and use of the Services is subject to the Other Contracts and in the event of any conflict between these Customer Terms and an Other Contract, the terms of the Other Contract will prevail.
Fees and payment
Customer will be charged the fees and is subject to the payment terms that may have been agreed in the applicable Other Contracts. It is anticipated that, the fees may be structured as follows:
- Issuers: a percentage of the value of the successful settlement transaction in respect of the successful sale of share(s) to an Investor(s) or User; and / or
- Investors: a percentage of the value of the transaction in respect of the successful sale of share(s) in an Issuer to another Investor or User.
Third party transactions Customer acknowledges and agrees that:
- Any agreement in relation to the sale or purchase of shares or similar transaction between Customers is as between the parties to the transaction only;
- Cap Equity will not be held liable in connection with any such third party transactions including for any inaccuracies in the Customer Content, and Customer indemnifies us against any and all damages, loss or claims in this respect; and
- Any disputes in connection with any such third party transactions shall be resolved between the parties to the transaction only.
Term and termination
Customer’s access to the Platform and use of the Services will continue as follows:
- Issuers: indefinitely until terminated by Cap Equity;
- Investors: for so long as (i) the Investor is a shareholder in an Issuer listed on the Platform or (ii) conforms with the relevant regulatory ‘know-your-customer’ requirements; and in either case unless and until terminated by Cap Equity.
Customer’s access to the Platform and use of the Services may also be dependent upon the term of applicable Other Contracts.
Cap Equity may terminate Customer’s access to the Platform and use of the Services at any time upon three (3) business days’ notice, unless Cap Equity has a reasonable belief that Customer’s access is not secure and may result in system vulnerability, in which case Cap Equity may terminate access immediately to address such concerns.
Platform and content
The Platform contains the software which will allow Customer to: (i) view the Content and the Customer Content, (ii) access the Services and (iii) invite existing and new Users to the Platform, with content provided by Customer or its authorised Users. Customer shall ensure that its Users comply with the terms of the Agreement and the User Terms of Service located at www.cap-equity.com/user-terms-of-service.
Customer will determine who the Users will be and is responsible for registration of its investor base on the Platform. Customer will be responsible for the Users’ conduct while accessing the Platform and will be liable for any damages, loss or claims howsoever arising from or relating to the use or misuse of, or access to, the Platform by the Users.
Without in any way derogating from the abovementioned, Customer and the Users will not in any way whatsoever and without limitation edit, alter, copy, reproduce, transmit, perform, create derivative works of, grant any rights in respect of, publish, or disseminate any of the online manuals, the Content or any portion of either; disassemble or reverse engineer the Content or any part thereof; and/or do anything or allow the doing of anything, which may have the effect of circumventing, disabling, damaging or impairing the Platform or the Content or any portion of either and, in particular, the Platform’s control or security systems.
Customer agrees that Cap Equity may electronically collect, store and use the following information:
- Personal data (also referred to as personal information or personally identifiable information) within the meaning of privacy laws applicable to Customer including the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the Protection of Personal Information Act (Act No. 4 of 2013)(“POPI”) and the UK’s retained EU law version of the GDPR as implemented by the Data Protection Act 2018 (UK GDPR) (“Personal Data”) of Users, which may include name, email address, identification and passport number, job role, employee number, and telephone number and other information required for the relevant regulator’s ‘know-your-customer’ and/or anti-money-laundering purposes;
- Internet usage information, including internet protocol address, the dates and times that the User accesses the Platform, and time spent on the Platform; and
- In the context of an Issuer, Personal Data of individuals (being employees or otherwise) that is included in the Customer Content.
With respect to data that may qualify as Personal Data, Customer shall, in its use of the Services provided by Cap Equity hereunder, collect, access, use, store, disclose, dispose of, transfer and otherwise process the Personal Data of Customer and its Users in accordance with the requirements of applicable data protection laws and regulations. Customer shall have sole responsibility for the accuracy, quality, and legality of such Personal Data, the means by which Customer acquires such Personal Data, and the means by which Customer or any relevant affiliate of Customer collects, stores, processes and transmits such Personal Data. Customer shall collect, store, process and transmit to Cap Equity the Personal Data of Customer in accordance with the requirements of all applicable laws. Customer agrees to indemnify and hold Cap Equity and its affiliates harmless from any claim related to the foregoing.
The information provided by the User may be used by Cap Equity to satisfy anti-money laundering and know-your-customer regulatory requirements, communicate other investment opportunities which may be of interest, functionality updates and enhancements, to remember a User’s information in order that they do not have to re-enter such information for log-in purposes, and to track entries, submissions and status in connection with the usage of the Platform.
Cap Equity acknowledges and agrees that Customer owns and retains all right, title and interest in and to the data, information and material that it uploads to or that results from its use of the Services (the “Customer User Data”) as well as to the Customer Content hosted on the Platform. Customer acknowledges and agrees that Cap Equity owns and retains all right, title and interest in and to the Derived Data. “Derived Data” means (i) Customer User Data that has been processed, anonymized, aggregated and/or manipulated by or on behalf of Cap Equity to such a degree that it cannot be identified by visual inspection as originating directly from Customer User Data and cannot be reverse-engineered such that it can be so identified; (ii) usage data and Customer User Data in aggregated form used for security and operations management, to create statistical analyses, for research and development purposes and incorporated into aggregated and anonymized data sets for the purpose of improving and commercializing products, software, technology and services of Cap Equity; and (iii) any general information or insight that is derived by or on behalf of Cap Equity in connection with the provision of the Services.
Customer agrees to the terms of the Data Processing Agreement which is entered into between Customer and Cap Equity and forms part of the “Agreement” between Customer and Cap Equity.
Ownership of intellectual property
It is recorded and agreed that all of the rights in and to all and any intellectual property in the Content and the Platform, whether registered or not, vests in Cap Equity and nothing contained or implied in the Agreement will derogate from Cap Equity’s intellectual property rights in any way whatsoever.
Similarly, nothing in the Agreement shall affect Customer’s right in and to all and any intellectual property in the Customer Content and nothing contained or implied in the Agreement will derogate from Customer’s intellectual property rights in any way whatsoever.
Neither Cap Equity’s nor Customer’s intellectual property may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited in whole or in part in any way whatsoever, without the express prior written consent of the owner of such intellectual property.
Intellectual property indemnity
Customer shall: (i) defend, or at its option settle, any claim brought against Cap Equity by a third party (a) to the extent it alleges that the Customer Content as delivered to Cap Equity or uploaded to the Platform and used by Cap Equity as authorized in this Agreement infringes or misappropriates any patent, copyright, trademark, trade secret or other intellectual property right of any third party, or relating to (b) any data provided or made available by or on behalf of Customer or (c) Customer’s use of the Services other than pursuant to the Agreement; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Cap Equity provides Customer prompt written notice of and sole control over the defence and settlement of any such claim as well as all information and assistance reasonably requested by Customer in connection with the defence or settlement of any such claim. If any such claim is brought or, in Customer’s judgment may be threatened, Customer may, at its sole option and expense: (w) procure the right to continue to use the Customer Content and have Cap Equity display it; (x) modify the Customer Content to make it non-infringing; (y) replace the Customer Content with non-infringing content; or (z) if none of the foregoing is commercially practicable, terminate the Agreement, provided, however, that in such instance, Cap Equity is entitled to retain all fees paid.
Limitation of liability
Unless otherwise expressly provided in the Agreement, Cap Equity and Customer’s liability to one another under the Agreement, howsoever arising, shall be limited to direct damages and losses only and in no event shall either party be liable for any business interruption, loss of use, profit, anticipated profit, contracts, revenues, goodwill, anticipated savings, business information, data or other pecuniary loss; and/or consequential, incidental or indirect losses; and/or special or other damages arising out of the Agreement regardless of whether such liability is based on breach of contract, delict, tort, strict liability or otherwise. Cap Equity’s total liability in contract, delict, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total fees actually paid by Customer in the previous 3 (three) months in respect of the services that are subject matter of these Customer Terms (if any) to which such liability is connected or relates.
Any limitation of liability set out in the Agreement shall not operate to exclude any liability of a party arising as a result of (a) that party’s fraudulent conduct; (b) in respect of any death or bodily injury caused by that party’s negligence or wilful misconduct; or (c) a party’s indemnification obligations set out in the Agreement (unless otherwise expressly agreed). In this clause 12 any reference to Cap Equity shall also include all of its directors, employees, consultants and agents and the subcontractors with which Cap Equity engages in relation to the Services.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT OR THESE CUSTOMER TERMS, THE SERVICES, SUPPORT AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. CAP EQUITY AND ITS REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING. CAP EQUITY AND ITS REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR WILL WORK WITHOUT INTERRUPTIONS. USE OF THE SERVICES REQUIRES ACCESS TO THE INTERNET WITH CUSTOMER ASSUMING ALL RISKS INHERENT IN SUCH ACCESS.
All communications between Cap Equity and Customer, and all information and other materials supplied to or received by either of them from the other (the “Confidential Information”) shall be kept confidential unless or until the party receiving the Confidential information (the “Receiving Party”) can reasonably demonstrate that the Confidential Information (or the relevant portion thereof) is already in the public domain through no fault of its own; has been lawfully obtained from any third party who/which was under no obligation to keep such communication, information or material confidential; is already lawfully known to the Receiving Party at the time that it receives such information (and the Receiving Party is under no prior obligation to keep such information confidential); or is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or of a governmental or regulatory body, or to comply with the provisions of any law or regulation in force from time to time. The aforementioned is provided that in these circumstances the Receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose; and use its reasonable endeavours to protect the confidentiality of such Confidential Information to the fullest extent practicable. The Parties shall use all reasonable endeavours to procure the observance of these restrictions and shall take all reasonable steps to minimize the risk of disclosure of Confidential Information.
Governing law and jurisdiction
All matters relating to these Customer Terms and Customer’s access to the Platform and use of the Services, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the Republic of South Africa, without regard to its principles relating to conflicts of law.
Any legal suit, action, or proceeding arising out of, or related to, these Customer Terms and Customer’s access to the Platform and use of the Services shall be instituted exclusively in the courts of the Republic of South Africa. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
Limitation on time to file claims
ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THESE CUSTOMER TERMS OR THE PLATFORM OR SERVICES MUST BE COMMENCED WITHIN 1 (ONE) YEAR AFTER THE CAUSE OF ACTION OCCURS; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver and severability
No waiver by Cap Equity of any term or condition set out in these Customer Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Cap Equity to assert a right or provision under these Customer Terms shall not constitute a waiver of such right or provision.
If any provision of these Customer Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Customer Terms will continue in full force and effect.
On termination of these Customer Terms, the following clauses along with this clause shall continue in force: clauses 2, 4, and 9 – 20.
The Agreement, which incorporates these Customer Terms and the applicable Other Contracts, constitute the sole and entire agreement between Customer and Cap Equity regarding Customer’s access to the Platform and use of the Services, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding Customers access to the Platform and use of the Services.
The Platform and the Services are operated by Cap Equity Management (Pty) Ltd whose registered office is at 6 Chamberlain Road, Claremont, Cape Town, Western Cape, 7708, South Africa. 7