1. Introduction: Summit is delighted to back you with your investment or divestment. Summit has developed the Summit Platform (”Platform”) that may enable you to conclude commercial transactions through the introduction, functionality or services provided by Summit and its representatives.
 

2. Parties: The parties to this agreement are you/ the entity/ person that intends to raise funding; exit an investment or utilise Summit services (”Investee/ Discloser/ You”), and Summit Deals UA (”Summit”) and the successors in title of such parties (“Parties”). You can contact Summit by email at support@summit.deals, or by mail to Hilversum Arena Business Park , 1st floor, Olympia 1D, Hilversum, North Holland 1213NT, Netherlands.

 

3. Non-Circumvention: The Investee acknowledges that it may be introduced to funders by Summit once the Investee has published their opportunity on the Platform and the Investee will not after being introduced, directly or indirectly circumvent or attempt to circumvent Summit for a period of three years after the last interaction between the Investee, Summit and/ or the introduced party.
 

4. Good Faith: The parties agree to act with the utmost good faith.

5. Purpose: The Platform provides certain functionalities to users relating to services/ functionality and introductions to investments or divestments in corporate entities that may be facilitated by the Platform. The parties undertake to honour these terms in addition to the general Summit Platform Terms of Use.

6. Term: Unless otherwise agreed, the term of the engagement between the Parties shall be the term/ duration selected by you being a period of 6 months (or 12 months if selected by you) from conclusion of this agreement which term will be automatically extended until (i) the conclusion of a transaction following an active engagement with a potential funder/ commercial party, introduced to you on the Platform, or (ii) the unconditional failure of such transaction (”Term”). In the event of other, non-fundraising services and functionality provided by the Platform, this agreement will endure on a month-to-month basis with either party being able to terminate with 30 days prior notice.

7. Commercials: The Investee unconditionally agrees to pay Summit the fees listed in clause 8 below on the understanding that if you are a Start-Up complying with the following criteria then you will be entitled to a 50% discount on the Monthly Subscription and Reporting and Data room use Fees (”Start-Up Discount”):

7.1 You must have been incorporated within less than 3 years; and
7.2 Earn annual revenue less than €500,000; and
7.3 You must not be a subsidiary or affiliated entity of a corporate group that has been in existence for more than 3 years.
 

8. Fees

8.1 Fundraising Monthly Subscription (excluding Vat) which will include the full dealmaking functionality as well as the reporting, use, and maintenance of the data room fee below, due by you to Summit for the use of the Summit Platform shall be payable in advance:
 

8.1.1 €300 per month (Start-Up Discount fee €150 per month); or
8.1.2 €1600 for 6 months (Start-Up Discount fee €800); or
8.1.3 €3000 for 12 months (Start-Up Discount fee €1500);
 

8.2 Reporting use and maintenance of data room subscription:
 

8.2.1 €100 per month (Start-Up Discount fee €50 per month); or
8.2.2 €550 for 6 months (Start-Up Discount fee €275); or
8.2.3 €1000 for 12 months (Start-Up Discount fee €500);

8.3 The Success-based fee shall be payable by the Investee to Summit calculated on the gross value of all transactions between the Investee and the Investor as introduced or facilitated by the Platform/Summit that relate to funding, the sale/exchange of equity/securities, debt, assets disposed of, or any other financial instruments exchanged (”Value”). Payment will be due and payable immediately once Value has been exchanged or transferred, whichever occurs first. If transactions are done in more than one tranche, then the success fee will be paid in respect of the Value of each tranche. All payment due by the Investee to Summit shall be payable immediately upon invoice calculated on the following Values on a success fee (excluding Vat) basis:

8.3.1   2,8 % on the first €5 million
8.3.2   2,5 % on the next €5 million
8.3.3   2% on the next €5 million
8.3.4   1,5% on the next €5 million
8.3.5   1% on the next €5 million
8.3.6   0,5% thereafter

9. Warranties and Indemnity: Summit, including its affiliated entities, advisors’ executives, employees, and advisors (Summit Indemnified Parties) do not give any warranty or guarantee with regards to any information published on the Platform, services rendered or the performance of the Platform including the probability of raising funding (Summit Performance). The Summit Indemnified Parties will have no liability of any nature, to You or any party that You represent, whether in contract, delict or otherwise, for any losses, damages, costs or expenses (“losses”) whatsoever and howsoever caused arising from or in any way connected with the Summit Performance, except where such losses are caused by its gross negligence or wilful default. In any event, Summit’s total aggregate liability for any claim whatsoever arising as a result of the Summit Performance or lack thereof shall be limited to and shall not exceed an aggregate (inclusive of costs) amount to € 5,000. No recourse shall exist against the estates of the individual executives, employees, and advisors of Summit Indemnified Parties.

10. Breach and Termination: Should either party (“the defaulting party”) fail to punctually, partially or at all comply with any of its obligations in terms of this agreement, the other party (“the non-defaulting party”) shall be entitled, in addition to all other rights that it may have, to issue a notice calling on the defaulting party to remedy any such default within 5 (five) working days. If the defaulting party fails to satisfactorily remedy such default, the non-defaulting party shall be entitled, in addition to any other rights and remedies that it may have, including the right to recover damages, including direct, indirect and consequential damages, to:
 

10.1 claim specific performance; or
10.2 terminate this agreement, such termination to be effective from the date stipulated in the termination notice delivered to the defaulting party, or, in the event that no termination date is stipulated in such notice, immediately upon delivery of such notice to the defaulting party.

11. THE CONFIDENTIAL INFORMATION
 

11.1 For the purpose of this agreement:
 

11.1.1 “Confidential Information” means all proprietary information disclosed by the Discloser, that may reasonably be regarded as confidential, being information not in the public domain, whether such information is oral or written, recorded or stored by electronic, magnetic, electro-magnetic or other form or process, or otherwise in a machine-readable form, translated from the original form, recompiled, made into a compilation, wholly or partially copied, modified, updated or otherwise altered, originated or obtained by, or coming into the possession, custody, control or knowledge of either Party, including but without being limited to all trade connections and information disclosed to the other party.

11.1.1.1 but does not include information and trade connections which –
 

11.1.1.1.1 is or hereafter becomes part of the public domain, otherwise than as a result of a breach or default of either Party or of a representative or affiliate of such Party in breach;
11.1.1.1.2 can be shown to have been lawfully in the possession of a Party or its affiliates prior to its disclosure and that the party transacted with such trade connection;
11.1.1.1.3 is acquired by a Party or its affiliates independently from a third party who lawfully acquired such information without restriction and who had not previously obtained the information directly or indirectly under a confidentiality obligation from the divulging party or its affiliates; or
11.1.1.1.4 is disclosed or released by a Party to satisfy an order of a court of competent jurisdiction or to otherwise comply with the provisions of any law or regulation in force at the time or the requirements of any recognised stock exchange; provided that, in these circumstances, such Party shall advise the divulging Party by written notice prior to (where legally permissible) any such disclosure, where at all possible and advise the divulging Party to take whatever steps it deems necessary to protect its interests in this regard and provided further that such Party will afford the divulging party reasonable opportunity, if possible, to intervene in the proceedings, and disclose only that portion of the information which it is legally required to so disclose; and such Party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent lawfully possible in the circumstances (and the Party shall co-operate with the divulging party if the divulging party elects to contest any such disclosure).

11.1.2 "Trade Secrets” means any information belonging to the Discloser (including but not limited to trade and business) which derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

11.2 DISCLOSURE OF CONFIDENTIAL INFORMATION

 

11.2.1 Summit shall take the necessary steps to ensure that all its officers, employees, agents, and advisors acting on its behalf or engaged in the consideration, evaluation, and negotiation of the Proposed Engagement and any related due diligence investigation of the business and affairs of the Discloser, are aware of the provisions of this agreement and shall ensure compliance with this agreement.
11.2.2 Summit will only utilise the Confidential information in accordance with this agreement, the functionality of the Platform functionality, its terms and Conditions, and the Summit Privacy Policy.

 

11.3 TITLE

The Discloser shall retain all rights, title, and interest in and to the Confidential Information and it is acknowledged that all intellectual property, that subsists in the Confidential Information, including rights to improvements and developments, shall belong to the Discloser and remain its exclusive property. The term “intellectual property” shall include but shall not be limited to inventions, whether patentable or not, patents, trademarks, copyrights, know-how, and trade secrets.

11.4 STANDARD OF CARE

Summit agrees to protect the Confidential Information with reasonable care to be stored and handled in such a way as to prevent unauthorised disclosure or access.

11.5 RETURN OF CONFIDENTIAL INFORMATION

Unless otherwise agreed in a transaction with an Investor or third parties, the Discloser shall be entitled to delete any and/or all disclosed Confidential Information by providing Summit with 14 days’ notice, in which event Summit will delete all information from the Platform.

11.6 EXCLUDED INFORMATION
 

11.6.1 The obligations pursuant to this agreement shall not apply to the Confidential Information if -
11.6.2 a Party can show by way of written record that the Confidential Information was in the possession of the Party, prior to disclosure thereof;
11.6.3 the Confidential Information is or becomes publicly known, otherwise than as a consequence of a breach of this agreement or of any action of the Party concerned;
11.6.4 it can be proved that the Confidential Information has been rightfully received by the applicable Party from a third party without a breach of a duty or obligation of confidentiality of which the third party or the disclosing Party was aware;
11.6.5 the Confidential Information was independently developed by a Party, or third party as proven by its written records;
11.6.6 the Confidential Information is disclosed by a Party to satisfy a legal demand by a competent court of law or governmental body, provided however that in such circumstances, the Party concerned shall advise the Party who made the disclosure prior to such mandatory disclosure, as far as it is reasonably possible, so that the Party who disclosed the Confidential Information has an opportunity to defend, limit or protect itself against such production or disclosure. The Party concerned shall disclose only that portion of the Confidential Information which is legally required to be disclosed and shall exercise its reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to any part of the Confidential Information required to be disclosed.

12. General
 

12.1 Notices: The parties choose their physical addresses submitted to each other as the address where they will receive all communications an notices (legal or otherwise)
12.2 Legal Costs: Any party successfully enforcing or defending its rights in terms of this agreement and/or statement of work shall be entitled to all legal cost as between attorney and own client (including counsel’s fees), tracing fees and/or collection charges and/or disbursements and/or fees of whatever nature and shall be payable by the other party on demand.
12.4 Severability: any provision in this agreement which is or may become illegal, invalid or unenforceable shall be severed from the balance of this agreement without invalidating the remaining provisions thereof or affecting the validity or enforceability of such remaining provisions;
12.5 Entire Agreement: save as expressly provided for herein, this agreement constitutes the entire contract between the parties and no provisions, terms, conditions, stipulations, warranties or representations of whatsoever nature, whether express or implied, have been made by any of the parties or on their behalf except as are recorded herein;
12.6 No Waiver: save as expressly provided for in this agreement, no relaxation, waiver, extension of time, indulgence or latitude which any party (“the grantor”) may show, grant or allow to another (“the grantee”) shall in any way constitute a waiver by the grantor of any of the grantor’s rights in terms of this agreement and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have then already arisen or which may arise thereafter;
12.7 Conflict: In the event of conflict between these Terms of Use and the Summit Platform Terms of Use, or any other agreements between the parties the terms within these Terms of Use will prevail, to the extent that the conflict provision is legitimate.
12.8 Jurisdiction and Notice: This agreement shall be governed and interpreted in accordance with the substantive laws of the Netherlands, and the agreement will be subject to the non-exclusive jurisdiction of the courts in Amsterdam.
12.9 No Amendment: No amendment to this agreement shall be valid unless reduced to writing and signed by the parties.