These Terms and Conditions the use of this Website by Users and the provision of Services by Colibri Capital Ltd, unless otherwise expressly provided.
These Terms and Conditions are divided into three parts:
i. Part 1: General Terms and Conditions for Users, shall apply to all Users; and
ii. Part 2: Terms and Conditions for Investors, shall apply solely with respect to Investors; and
All appendixes annexed to these Terms and Conditions shall be deemed to form an integral part hereof and shall be read in conjunction with these Terms and Conditions.
Part 1: General Terms and Conditions for Users
1. About Colibri
1.1 Colibri is a company registered and incorporated under the laws of Great Britain having company registration number 14516207 and registered office at 27 Old Gloucester Street, London, England.
1.2 Colibri does not conduct any licensable activity and accordingly is not a licensed or supervised entity. In this regard, Users shall not use Colibri or the Website to market services, particularly investment advisory services, which may subject Colibri or the Services to supervision by any regulatory authority.
1.3 Colibri shall in no event be liable for any damages or losses which may be incurred by Users, save to the extent permitted by law.
2. Scope and Application
2.1 Persons may choose to register as Users with the Website and create an Account in order to make use of all or some of the Services offered by Colibri.
2.2 Any User who creates and / or operates an Account in the name of and for and on behalf of another person, represents that (i) he/she/it is the rightful representative of the other person in whose name he/she/it has created and / or operates the Account in question, and (ii) has been duly authorised to create and / or operate the Account in the name of and for and on behalf of such third party.
2.3 By accessing the Website and / or creating and / or operating an Account, Users agree and undertake to abide by the Terms and Conditions at all times. Users who use the Website and / or open and / or operate an Account shall be deemed to have read and understood the Terms and Conditions, the Risk Warnings, the Disclaimer and the Privacy Notice and declared their consent thereto. Any User who does not agree to be bound by these Terms and Conditions, the Risk Warnings, the Disclaimer and the Privacy Notice shall not use the Website nor maintain nor operate an Account.
2.4 These Terms and Conditions shall remain applicable on an indefinite basis for as long as there remains an Account opened in the name of and / or operated by the User in question, or unless otherwise provided in terms of these Terms and Conditions or any other agreement which may be entered into between the User and Colibri.
2.5 Colibri retains the right to edit, disable or cancel any Account or part thereof on the provision of a written notice to the User, in the event that Colibri deems that the opening or operation of an Account is in breach of these Terms of Conditions.
2.6 Colibri retains the right to amend these Terms and Conditions as and when it deems fit and at its sole discretion. Upon amending these Terms and Conditions, Colibri shall cause an alert notification to be made on the Website automatically upon the first login on the Website by each User following any such amendment to the Terms and Conditions. Users who continue to use the Website and / or have an account opened in his/her/its name and/or operate an Account after an amendment to these Terms and Conditions and after having received such alert notification, shall be deemed to be fully aware of the revised Terms and Conditions and shall be bound by such revised Terms and Conditions.
2.7 Each User warrants and undertakes that his/her/its use of the Website and / or the opening and / or the operation of an Account and / or the participation in any transaction in connection with the Services are not contrary to any applicable law or regulation in his/her/its jurisdiction or would subject Colibri to any supervision and / or registration and /or licensing requirements in such jurisdiction.
3. Definitions
“Account” means an account created or used by a User on the Website;
“Confidential Information” means any information of whatever nature, including information relating to data, experience, trade secrets, algorithms, ideas, know-how, computer systems and computer software, future projects, business development or planning, commercial relationships and negotiations and the marketing of goods and services (including customer names and lists, sales, targets and statistics) used in or otherwise relating to the business, customers or financial affairs, which may be disclosed by the Start-Up to Colibri or the Investor or any other receiving party, whether in writing, orally, visually, in the form of samples, models or otherwise. Confidential Information means also all notes, analyses, compilations, studies, interpretations or other documents prepared by Colibri, the Investor or any other receiving party which contain, reflect or are based upon, in whole or in part, the information furnished to Colibri, the Investor or any other receiving party.
“Deal Leader” shall mean, with respect to each respective investment, such natural or legal person appointed by Investors pursuant to Part 1, clause 7 below;
“Disclaimer” shall mean the disclaimer issued by Colibri and which is available on the Website;
“Investor” shall mean a person interested in investing in early-stage businesses and start-ups and the term “Investors” shall be construed accordingly;
“Privacy Notice” shall mean the privacy notice issued by Colibri and which is available at www.colibri-ltd.com;
“Risk Warnings” shall mean the risk warnings issued by Colibri;
“Services” shall mean the services provided by Colibri, which include but are not limited to those services set out in Appendix A of these Terms and Conditions;
“Terms and Conditions” shall mean these terms and conditions for use of service issued by Colibri;
“User” means a registered user of the Website;
“Website” means the website operated by Colibri, available at https://www.colibri-ltd.com/.
4. Other agreements
4.1 During the course of a User’s use and operation of an Account, he/she/it may enter into separate agreements with Colibri regulating the substantive terms of a User’s use of the Services.
4.2 These Terms and Conditions, as may be amended, shall continue to apply and remain in full force and effect after the entry into any other agreements with Colibri such as those mentioned in clause 4.1 above. In the event of a conflict between these Terms and Conditions and the substantive agreements referred to in clause 4.1, the substantive agreements referred to in clause 4.1 above shall prevail.
5. Replacement of previous memberships
5.1 These Terms and Conditions shall apply to all new Users who were not previously members of Colibri’s network.
5.2 All previous members may, subject to the prior consent in writing of Colibri, retain their current membership with Colibri until the date of expiry of their current membership. Previous members shall inform Colibri in writing whether they would like to retain their current membership in terms of this Part 1, clause 5.2 or otherwise by not later than one month from the date when they were informed of the entry into force of these Terms and Conditions.
5.3 All previous members who do not opt to retain their current membership with Colibri in accordance with Part 1 clause 5.2 above shall, on the expiry of the aforementioned one month period, have their current membership cancelled and shall be deemed to become each a User and subject to these Term and Conditions.
5.4 Upon the expiry of each previous member’s current membership, such member shall, automatically and unless he/she/it has provided written notice to Colibri as set out in Part 1 clause 5.2 above, have his/her/its current membership cancelled and shall be deemed to have become a User.
6. Duties of Colibri
6.1 Subject to and without prejudice to any other duties of Colibri which may be set out in these Terms and Conditions, in providing the Services, Colibri undertakes to use its best endeavours to provide Users with complete and accurate information. Notwithstanding the provisions of this clause 6.1, Users are advised to seek their own independent legal, tax and financial advice before taking any decision in connection with the Services offered by Colibri.
6.2 With respect to any events which may be organised by Colibri as set out in Appendix A of these Terms and Conditions, Colibri retains the right to change or cancel any event upon the provision of reasonable written notice to Users in the event of:
i. Colibri determining that there have been no or insufficient registrations for that particular event;
ii. There existing or arising unforeseen circumstances which would render the holding of such an event disproportionately onerous on Colibri.
6.3 Colibri shall be under no obligation to re-schedule the cancelled event at a later date.
7. Appointment of a Deal Leader
7.1 Users agree and accept that a Deal Leader shall be appointed by a syndicated group of Investors on the following occasions:
i. In the event of such syndicated group of Investors seeking to invest in a particular Start-Up. Such appointment shall be effective from the pre-investment round stage until the conclusion and execution of such particular investment round; and
ii. In the event of such syndicated group of Investors investing in a particular Start-Up on an indirect basis as is set out in Part 2 below. Such appointment shall be effective immediately after the conclusion and execution of such particular investment and on an on-going basis thereafter.
With respect to the investment in a particular Start-Up, the Deal Leader appointed in terms of clause 7.1(ii) above may be the same person appointed in terms of clause 7.1(i) above.
7.2 The Deal Leader shall be appointed for the purpose of exercising each Investor’s voting and representation rights attaching to the relevant securities being invested in.
7.3 The appointment of a Deal Leader shall be made following a majority decision of:
i. the Investors seeking to invest in a particular Start-Up, with respect to the appointment pursuant to clause 7.1(i) above;
ii. the Investors who have invested in a particular Start-Up on an indirect basis, with respect to the appointment pursuant to clause 7.1(ii) above.
7.4 It is agreed and understood that the appointment of a Deal Leader shall be regulated by means of a separate Deal Leader Agreement.
8. Payment of fees and expenses
8.1 The creation of an Account shall be free of charge, however fees may become payable in accordance with the terms and conditions of any Service which may be offered by Colibri or in terms of any separate agreement which may be entered with Colibri.
8.2 Colibri undertakes that, so far as reasonably possible, it shall inform Users in advance in the event of any activity, transaction or event being subject to any fee, charge or other expense.
8.3 Users shall be bound to pay the fees and expenses which may be applicable for any chosen Service.
8.4 In the event of any outstanding fees or expenses remaining due by a User to Colibri, Colibri retains the right, at its sole discretion, to terminate any Service offered to such User and / or to discontinue from the provision of any further Service to the User and / or to terminate such User’s Account.
8.5 The fees and charges set out in Our Pricing section on our website do not cover:
i. Any airfare or other travelling expenses which may be incurred by a User;
ii. Expenses or professional fees which may be due to any third party, including third party professional advisors;
iii. Expenses or fees which may be due to the Syndication Investor for services not included in Colibri’s investment monitoring service.
8.6 Colibri reserves the right to recover any outstanding fees or expenses which may be due from an Investor by retaining all or such amount from the proceeds to be received by such Investor upon the termination of a particular investment and the exit from such Start-up. Colibri undertakes to inform such Investor in writing in advance of it retaining such proceeds as set out in this clause 8.6.
8.7 Colibri reserves the right, at its sole discretion, to alter any fees or charges set out in Our Pricing section on our website. In such an event, Colibri undertakes to give Users written notice of such change at least one month in advance of the entry into effect of such change.
9. Confidentiality obligations of the Investor
9.1 The Investor undertakes, in respect of Confidential Information which may be disclosed to it:
(i) To treat and keep such Confidential Information secret and confidential;
(ii) Except without the prior written consent of the Start-Up, being the disclosing party, not to, directly or indirectly, make, cause or allow to be made any communication or disclosure (whether in writing or orally or in any other manner) of such Confidential Information to any third party, and provided that such disclosure is made solely for the purpose of facilitating the Investor’s investment in the Start-Up and then only on the understanding that such third party is made aware of and undertakes to obverse the confidentiality provisions of these Terms and Conditions. Any third party means any individual or company other than the Investor, Colibri or the Syndication Investor;
(iii) Not to use such Confidential Information otherwise than for the purpose of investing in the Start-Up, unless such use is specifically authorised in writing by the Start-Up, and in particular, the Investor shall not use the Confidential Information for any competitive or commercial purpose;
(iv) To protect such Confidential Information, whether in storage or in use, with the same degree of care as the Investor uses to protect his/hers/its own confidential information against public disclosure, but in no case with any less degree than reasonable care;
(v) Not to disclose such Confidential Information to any person(s) employed in its company other than those for whom such knowledge is essential for the purpose contemplated in these Terms and Conditions and such disclosure shall be made only under conditions of strict confidentiality; and
(vi) Not to copy or reduce Confidential Information to writing except as may be strictly necessary for the purpose described herein.
9.2 The confidentiality obligations in these Terms and Conditions do not and shall not apply to any Confidential Information which can be proven by the Investor, Colibri or any other receiving party upon the request of the Start-Up:
a) At the time of disclosure was, or thereafter became, part of the public domain otherwise than through the fault or negligence of the Investor, Colibri or any other receiving party as the case may be;
b) Was published without contravening the provisions of these Terms and Conditions;
c) Is already known to the Investor, Colibri or any other receiving party at the date of receipt of Confidential Information pursuant to these Terms and Conditions;
d) Has been approved for release or use (in either case without restriction) by written authorisation of the Start-Up;
e) Has not been designated or confirmed as Confidential Information, unless the circumstances surrounding their disclosure make it obvious that this was Confidential Information; or
f) Is required to be disclosed by the Investor, Colibri or any other receiving party by applicable law, regulation or court order in which event the Investor, Colibri or any other receiving party shall promptly notify the Start-Up of the requirement for such disclosure and shall co-operate, through all reasonable and legal means, in any attempts by the Start-Up to prevent or otherwise restrict disclosure of such Confidential Information.
9.3 The provisions of these Terms and Conditions, including but not limited to this Part 2 Clause 6, shall not be construed as ranting or conferring, either expressly or impliedly, any rights under any patents, copyright or any other form of intellectual property rights belonging to the Start-Up in respect of Confidential Information, the ownership of which shall remain vested in the Start-Up at all times.
9.4 In providing Confidential Information, neither the Start-Up as the owner of such Confidential Information, nor Colibri as the intermediary between the Start-Up and the Investor, makes any representation, warranty, assurance or inducement, expressed or implied, as to its adequacy, sufficiency or freedom from defect of any kind, including but not limited to, freedom from patent infringement that may result from the use of such Confidential Information, nor shall the Start-Up or GColibri, as may be applicable, incur any responsibility or obligation by reason of such information.
9.5 Without prejudice to any other rights or remedies that the Start-Up qua disclosing party may have, the Investor, Colibri or any other receiving party agrees that the Confidential Information is valuable and that damages may not be an adequate remedy for any breach by the Investor, Colibri or any other receiving party of the confidentiality provisions in this Part 1 Clause 6 of these Terms and Conditions. Accordingly, the Investor, Colibri or any other receiving party agrees that the Start-Up will be entitled without proof of special damages to the remedies of an injunction and specific performance for any actual or threatened breach by the Investor, Colibri or any other receiving party of the confidentiality provisions in this Part 1 Clause 6 of these Terms and Conditions.
9.6 The Investor or any other receiving party shall be responsible for any breach of the terms of the confidentiality provisions in this Part 1 Clause 6 of these Terms and Conditions by it or by any person referred to in Part 1 Clause 6.1(v) above to whom he/she/it has disclosed Confidential Information. The Investor or any other receiving party shall indemnify and keep indemnified the Start-Up from and against all costs, expenses, losses or damages (including but not limited to legal expenses) which may arise directly or indirectly from the unauthorised disclosure or use of Confidential Information by the Investor or any other receiving party or any of their advisers or from any other breach of the terms of this Part 1 Clause 6.
10. Limitation of liability
10.1 Colibri does not accept any liability for any error or omission in the information made available by it through the provision of the Services or the Website.
10.2 Users agree and acknowledge that in the provision of the Services by Colibri, Colibri shall not be deemed to have verified the investment potential, the risk associated with any particular investment opportunity or otherwise provide any advice to a User, and that any information provided by Colibri shall not constitute legal, fiscal, financial or investment advice or recommendation.
10.3 In particular, Colibri or the Relationship Manager shall not be deemed to have acted in a fiduciary capacity with respect to any investment opportunity or any other transaction or the administration of the transactions.
10.4 Users agree and acknowledge that Colibri does not guarantee that any information provided on the Website or through the provision of the Services, which information shall have been provided to Colibri by a Start-Up, Deal Leader or other third party, is true and accurate.
10.5 Users agree to hold harmless Colibri, its employees, officers, agents or partners with respect to any and all losses which may be incurred by a User in relation to the use of the Website by a User or the provision of the Services by Colibri, save for any such loss which may be caused by the wilful misconduct or gross negligence of Colibri.
10.6 In the event that an arbitrator or a court, notwithstanding the immediately preceding clauses, awards damages against the Colibri, its liability in damages shall be limited to the amount payable as fees by the Users.
11. Liability for Breach of Obligations
If either party hereto is in breach of its obligations hereunder, the other party shall be entitled to take remedial measures such as fixing a time limit for effecting the remedy, performance of the contract, removal of obstructions, compensation for losses or other legal remedial measures. To the extent that the same are not asserted in any legal proceedings, either party’s non-exercise or partial exercise of its rights hereunder or non-adoption or partial adoption of legal remedies shall not operate as such party’s waiver of the exercise of all its rights or the rights which have not been exercised or such party’s waiver of the taking of all the legal remedies or the legal remedies which have not been taken.
12. Severability
Each of the provisions of and undertakings in these Terms and Conditions is separate and severable and enforceable accordingly. If any one or more provision of or undertaking in these Terms and Conditions is declared by any court of law or other competent authority to be void or otherwise unenforceable, that provision shall be severed from these Terms and Conditions and the remaining provisions of these Terms and Conditions shall remain in full force and effect.
13. Non-transferability, non-delegation and non-assignment of rights and obligations
12.1 These Terms and Conditions relate to the use of the Website and the provision of Services to each User personally. Accordingly, no User shall be permitted to transfer, assign or delegate his/her/its rights and obligations arising in terms of these Terms and Conditions to any third party without the prior written consent of Colibri.
12.2 Colibri undertakes that it shall not transfer, assign or delegate its rights and obligations arising in terms of these Terms and Conditions to any third party without giving prior written notification to Users.
14. Communications
13.1 A User may send communications to Colibri in relation to these Terms and Conditions and / or any technical issues with the use of the Website by sending an email to [email protected] – for any other questions or feedback relating to the Website, please see the “Contact Us” section of this Website.
13.2 In the event that Colibri is required to contact a User, it shall do so in accordance with the most recent contact details provided to Colibri by the User. Users undertake to inform Colibri as soon as possible upon any change in his/her/its contact details.
15. Complaints
If a User wishes to make a complaint about Colibri, the process for doing so is set out below:
i. Users are to inform Colibri of their complaint in writing by email at Colibri at [email protected];
ii. Colibri’s team shall look into each complaint received, and in so doing, may request further and more specific information from the complainant in relation to the complaint in question;
iii. Colibri’s team shall endeavour to provide a reply, and where necessary, a proposed solution, to each complaint received within the shortest time reasonably possible from the receipt of the complaint as set out in (i) above.
16. Applicable law
These Terms and Conditions and the relationship between each User and Colibri as arises from the terms and conditions hereof shall be governed by and construed in accordance with the laws of Malta.
Part 2: Terms and Conditions for Investors
1. Duties of Colibri
1.1 Colibri undertakes to provide Investors with a platform for Investors to receive information and obtain access to investment opportunities in Start-Ups.
1.2 Colibri undertakes to keep Investors fully informed in a timely manner in the event of a Start-Up holding one or more follow-on rounds of investments.
Colibri undertakes to permit Investors, at their sole discretion but subject to the terms and conditions of the investment in question, to invest in any one particular Start-Up directly and in their own names, or indirectly through the Syndication Investor, that shall have the role of syndicating investments.
1.3 These Terms and Conditions shall, to the extent applicable, remain in force with respect to each Investor with respect to both direct and indirect investments in Start-Ups.
1.4 Each Investor agrees and accepts that it may be required to enter into additional agreements in furtherance of it undertaking an investment in a Start-Up.
1.5 Colibri retains the right, in accordance with and subject to the provisions of any applicable law, to request information from a Start-Up in relation to any direct investments by any one particular Investor.
2. Investing on a syndicated basis
2.1 Investors agree and accept that their investment in a Start-Up may, depending on the terms and conditions of such particular investment, be on a direct basis in their own names or on an indirect basis through the Syndication Investor.
2.2 Investors agree and accept that such indirect investment may be regulated by a separate agreement to be entered into between the Investor, Colibri and the Syndication Investor.
2.2.1 Investors agree and accept that different Syndication Investors may be appointed with respect to different investment opportunities.
3. Duties of the Investor
3.1 The Investor agrees and undertakes that he/she/it shall promptly give all information or documentation which Colibri and / or the Syndication Investor as may be applicable, may request from the Investor, whether jointly or severally, from time to time in order to perform the Services and / or to comply with any applicable laws and regulations.
3.2 The Investor agrees and undertakes that he/she/it will promptly inform Colibri and / or the Syndication Investor as may be applicable, should he/she/it become aware of any changes or updates to any information or documentation previously provided to Colibri and / or the Syndication Investor.
3.3 The Investor agrees and undertakes that he/she/it shall, at all times, act with transparency and good faith.
3.4 The Investor shall not use the Website, the Account or the Services offered by Colibri for the purposes of his/her/its own commercial or professional activities unless the prior written consent of Colibri has been obtained.
3.5 The Investor undertakes to immediately inform Colibri of any actual or potential conflict of interest which may arise in relation to a particular investment, including when the Investor is already an investor in, supplier or service provider to the Start-Up in which the investment shall be made.
3.6 The Investor agrees and undertakes to pay any fees, service charges or any other amounts which may become due and payable pursuant to his/her/its particular investment, in a prompt and timely manner in accordance with any separate agreement which may be entered into with Colibri for such purpose or in any pricing schedule.
3.7 At any time prior to the expiration of 3 years from the date when the Investors agrees to these Terms and Conditions, it is expressly agreed that the identities of any individual or entity and any other third parties including, without limitation, suppliers, customers, financial sources, manufacturers and consultants, discussed and made available by Colibri or the Start-up, being the disclosing party, in respect of the purpose described in Part 1, clause 9.1 above, and any related business opportunity shall constitute Confidential Information and the Investor or any other receiving party or associated entity or individual shall not, (without prior written consent of the disclosing party):
i) directly or indirectly initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertaking with any such third party identified or introduced by the disclosing party; or
ii) seek to by-pass, compete, avoid or circumvent the disclosing party in respect of any business opportunity that relates to the purpose by utilising any Confidential Information or by otherwise exploiting or deriving benefit from the Confidential Information.
The receiving party covenants that any financial gain made by it, or any associated party, from a breach of clause 3.7 shall be held on trust for the benefit of the disclosing party and then be transferred to a nominated account of the disclosing party, until which time such outstanding amount shall incur interest at the rate of 4% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and the Recipient shall pay the interest together with the overdue amount.
3.8 The Investor agrees and undertakes to promptly notify Colibri of any solicitation which he/she/it may receive through the Website or otherwise from any other User, employee, agent, partner or other person associated with Colibri, which solicitation is not in accordance with these Terms and Conditions or any other agreement which may have been entered into with Colibri.
3.9 The Investor agrees and accepts that it shall not use the Website or the Services provided by Colibri for the purposes of soliciting customers for his/her/its own commercial or professional activities unless he/she/it has received the prior written consent of Colibri.
3.10 The Investor agrees and undertakes that, unless he/she/it has received the prior written consent of Colibri, he/she/it shall not, for a period of six months after the completion of a particular investment in a Start-Up or the termination or discontinuance of a proposed investment in a Start-Up, contact the management or board of directors of such Start-Up with the intention of soliciting his/her/its professional or commercial services.
3.11 In the event of he/she/it exiting from his/her/its investment in a Start-Up, such Investor undertakes to co-operate in good faith with the Start-Up, Colibri and / or the Syndication Investor in order to facilitate the smooth exit of such Investor.
Appendix A
Schedule of Services as offered by Service Provider
All capitalized terms not defined herein shall have the meanings set forth in the Agreement
The following list is a representation of the default, habitual and expected services that will be provided by the Service Provider. This list is not intended to be exhaustive and due to the complex nature of the services being offered this list is only to be considered as indicative of the work to be performed by the Service Provider.
General Provisions
1. The Service Provider is mandated to facilitate and support the investment process from provision of investment opportunities up to the liquidation of any investments made.
2. The Service Provider is well versed in the identification of investment opportunities offered by privately-held small and medium-sized companies.
3. The Service Provider is willing to provide its expertise at organizing events that foster exposure to investment opportunities, coordinate the collaboration of investors and offer training in early stage investing.
4. The Service Provider reserves the right to:
(i) change, edit, disable or cancel any User Account or part thereof, including that of an Investor or StartUp, on the Service Provider’s Website with reasonable notice if the Service Provider deems, in its sole discretion that the use of that Account was not in compliance with these Terms and Conditions or that it was otherwise undesirable for such Account to continue to remain published on the Website.
(ii) change or cancel any event published on the Service Provider’s website with reasonable notice if the Service Provider deems, in its sole discretion that insufficient registrations have been made for the relevant event. Provided that the Service Provider also reserves the right to change or cancel any part of its published programme of events without prior notice due to unforeseen circumstances or where there are no registrations for the event within the notice period as may be specified in the published programme of events itself. The Service Provider accepts no liability whatsoever for any changes or cancellations in the published programme of events carried out in accordance with this clause.