CONDITIONS APPLICABLE TO THE PARTICIPATIVE FINANCING SERVICES PROVIDED THROUGH THE PORTAL WWW.CAPITALCELL.ES
Summary of contents and customer information
1.1 Summary of Contents:
The present conditions regulate the participative financing services (the "PFP Service Conditions") provided through the website www.CapitalCell.es (the "Portal") and the requirements to be met by the clients in order to access them. Said services are limited to making known to the public, through the Portal, certain business projects (the "Project" or the "Projects") developed by companies (the "Promoters") that wish to carry them forward and obtain financing for them, putting them in contact with investors or fund providers registered in the Portal that seek a return on the investment, based on certain estimates of profitability (the "Investor" or the "Investors"). The Portal therefore allows its users to contact business projects and participate in their financing by taking a stake in their capital, through the mechanism known as collective financing or "crowdfunding".
The owner of the Portal is the company "CAPITAL CELL CROWDFUNDING, PLATAFORMA DE FINANCIACIÓN PARTICIPATIVA, S.L." (hereafter "Capital Cell"), with registered office in 08025 Barcelona, calle Ventallò, 62, Planta 3, with Tax Identification Code B65998288 and registered in the Mercantile Registry of Barcelona in volume 43.671, folio 85, page B-435.042. The email address for queries is info@CapitalCell.net and the telephone number is +00 (34) 902 04 37 57. Capital Cell is a participatory financing platform authorized by the National Securities Market Commission in accordance with the provisions of Law 5/2015 of April 27, 2015, on the promotion of business financing ("LFFE").
The relationship between each Investor and the relevant Promoter (the "Clients" or individually the "Client") shall be governed by the terms of the investment contract or agreement (the "Investment Agreement" or "InvestmentAgreement") entered into between the Promoter and the Investors as provided in clause 4.3 of these Conditions and shall also include, to the extent applicable, the other clauses of these Conditions.
On the other hand, the relationship between Capital Cell and the Developer will be regulated through a specific publication agreement (the "Publication Agreement") that will establish the conditions related to the publication of the Project on the Portal and the regulation of their relationship as a consequence thereof.
By accepting these PFP Terms of Service, the Customer represents:
- That you have read, understand and comprehend the foregoing.
- That he/she assumes all the obligations set forth herein.
- That you are of legal age and have sufficient legal capacity to be bound by these PFP Terms of Service and to use the services of the Portal.
1.2 Customer Information:
- The Portal does not provide advice to Clients in relation to the development or not of investments, nor does it assess the viability of the projects published therein, nor the advisability or not of carrying out a specific investment. Capital Cell is not an investment services company, nor a credit institution, nor is it a member of any investment guarantee fund or deposit guarantee fund.
In this regard, it is hereby stated that the Projects are not subject to authorization or supervision by the Comisión Nacional del Mercado de Valores ("....CNMV") nor by the Bank of Spain and the information provided by the Promoter has not been reviewed by such institutions nor, in the case of the issuance of securities, does it constitute a prospectus approved by the National Securities Market Commission. In particular, the activity of Capital Cell does not constitute the provision of investment services for the purposes of the provisions of the legislation in force, especially in the Securities Market Law, articles 62 and following. The information provided to the Investors regarding each Project may include third party valuations regarding its merits and feasibility, in which case the source of such valuation will be indicated, without Capital Cell being responsible for it.
- The investment decision corresponds to each Investor, based on the merits observed in each Project and its respective Promoters, and is made at their own risk and shall imply that the Investor or the Promoter have carried out the checks, studies and analyses they consider relevant to make the decision, for which Capital Cell shall not be liable in any case. Capital Cell Capital Cell does not guarantee the success of the projects that are advertised on the Portal, nor the fulfillment of their respective profitability estimates, both those made by itself and, where appropriate, the valuations of third parties. In this sense, each Investor shall assume the risk involved in the subscription of shares or assumption of shares of the Promoters through the Portal, and in particular the risk of total or partial loss of capital Invested (since there is no guarantee from the investment guarantee fund or the deposit guarantee fund), the risk of not obtaining the expected monetary return and lack of liquidity of the investment.
Likewise, in the event that the financing of the Project published through the Portal is through the issuance and subscription of shares or equity interests, the Investor shall assume at its own risk and expense the risk of dilution of its direct or indirect participation, the risk of not receiving dividends, not being able to influence the management of the Project or the Promoter and the risk derived from the restrictions to the free transferability inherent to the legal regime of the shares or equity interests subscribed as detailed in each case within the information disclosed to the Investors with respect to each Project.
- The information disclosed to the Investors with respect to each Project may include third party appraisals of its merits and feasibility, in which case the source of such appraisal shall be indicated, and Capital Cell shall not be responsible for such appraisal.
Notwithstanding the foregoing, Capital Cell may make and publish valuations regarding the profitability of the Project based on the calculation procedure set forth in the following document (the "Project Profitability Calculation Procedure"):
The information published on the Web with respect to the different investment alternatives cannot be considered as investment advice, having, therefore, the value of commercial communications of a general nature.
- The Projects published on the Portal are not subject to authorization or supervision by CNMV or by the Bank of Spain or by any other national or foreign regulator. The information provided by the Promoter in relation to the Projects will not be reviewed by such regulatory bodies and, without prejudice to the obligation of Capital Cell to assess with due diligence the admission of Projects and their compliance with the requirements set forth in Chapter IV of the LFFE and the fraud prevention measures implemented by Capital Cell as described in the present PFP Service Conditions and in the Publication Agreement, Capital Cell is not responsible for the veracity of the information provided by the Promoters in the framework of such evaluation process.
- The payments made between the Investors and the Promoter that are ordered through the functionalities made available to the Clients in the Portal will be outsourced to the payment service provider Lemon Way, a limited joint-stock company registered in the register of payment entities of the supervisory authority for financial institutions of the Republic of France under number 16,568 ("Lemon Way") and authorized in Spain to carry out its activity as a payment entity without permanent establishment in accordance with the applicable regulations. For this purpose, the Investor, throughout the process of registration as such in the Portal, must subscribe with Lemon Way the corresponding contractual documentation that regulates its relations with such payment services entity and proceed to the opening of a virtual payment account ("E-wallet") in Lemon Way.
The relationship between the Investor and Lemon Way shall be independent of the relationship between the Investor and Capital Cell, without prejudice to the provisions below in these PFP Terms of Service in relation to the authorization and mandate by the Investor to Capital Cell in relation to the consultation and execution of transactions by Capital Cell in the name and on behalf of the Investor in the Investor's Lemon Way account.
The Investor has carried out the checks, studies and analyses it has considered relevant to make the decision to open a payment account with Lemon Way. The Investor exempts Capital Cell from any liability that the Investor may suffer as a result of delays or defaults by Lemon Way in the provision of the payment services, without prejudice to the provisions set forth below regarding the operation of the Lemon Way account through Capital Cell.
- It is hereby stated that, in order to acquire the status of Promoter, Capital Cell shall require that the Promoter has the form of a capital company in accordance with Spanish law. The Promoter may not be considered a consumer for the purposes of the applicable regulations. However, Capital Cell offers the Promoter the possibility of withdrawing from the financing of the Project in accordance with the provisions of Clause 3.7 of these PFP Service Conditions.
2. Access to the Portal and use of the Services
Any person accessing the Portal and the information displayed therein shall have the status of user (the "User").
By the mere fact of accessing the Portal, it will be understood that you accept the following conditions of use of the Portal (the "Portal Conditions of Use").
In order to access the participatory financing services of Capital Cell, the User must register in the Portal as a "Registered User", accepting the present Conditions of Services of PFP and providing certain personal information for such purposes. Such information must be authentic and truthful, and it will be the responsibility of the User to keep it updated when modifications occur. Capital Cell reserves the right to exercise the claims and legal actions to which it is entitled in case of use of false information, assumed names or incorrect or incomplete contact details. In particular, Capital Cell reserves the right to cancel the account of any User who has provided false, inaccurate, incomplete or inconsistent information at the time of registration or thereafter.
The registration in the "Users Area" will imply the creation of an exclusive account for each User, identified with a "User Name" and protected with an "Access Password". The User will be responsible before Capital Cell for all the actions carried out through his/her respective account, being his/her responsibility to maintain at all times the confidentiality of his/her Access Password and to communicate immediately to Capital Cell any incident that may occur in relation to his/her account or with said Access Password.
Registration for the use of the Portal is free of charge, without prejudice to the fees applicable to the provision of services by Capital Cell to the Promoters in relation to each Project, which shall be borne by the companies through which the Projects published in the Portal are developed. In addition, both Investors and Promoters may be charged, where applicable, those expenses or charges that are indicated at the time of registration, in accordance with the provisions of these Conditions and in the brochure of fees published on the Portal and which forms part of these Conditions.
Only persons who are of legal age and have full capacity to act in accordance with their personal law may access the User Area and act as Registered Users.
In particular, it is the exclusive responsibility of the Users to comply with their fiscal, tax and administrative obligations, as well as the presentation of all declarations and data required by the applicable regulations.
Capital Cell shall not be liable for the breach of any legal or contractual obligation on the part of the Users, who shall hold the Portal harmless for any damage, loss or injury that may be suffered as a result of such breach.
Capital Cell additionally offers the Clients a remote communication channel so that they can contact each other, before, during and after the actions that give rise to the formalization of the Investment Agreement.
The communication channel between the Investors themselves, as well as between the Promoter and the Investors, enabled by Capital Cell through the Web, will guarantee that all the information sent through this channel will be accessible to the rest of the Investors through its publication in an easily visible place on the Web.
Capital Cell shall make available to the Investors, upon request, the information sent through the communication channel set up for this purpose, on a durable medium and for a period of no less than five (5) years from the closing of the fund raising.
3. Publication of Projects in the Portal
3.1. Application for publication and registration of the Project
Any Registered User may propose to Capital Cell the publication of one or more Projects on the Portal, through a specific section provided for this purpose in the User Area.
Such request shall not imply any obligation of Capital Cell in relation to the respective Project, the publication of which on the Portal shall be subject to the provisions of this Clause 3 and subject in any case to the Promoter meeting the conditions set forth in Chapter IV of the LFFE and the signing of the corresponding Publication Agreement (as defined below).
Notwithstanding the foregoing, the Promoter may only publish one Project on the Portal at a time. Therefore, the request for publication of a new project will be rejected until the financing round of the Project that has been published on the Portal has been completed.
The request for registration of a Project confers to the User the status of "Promoter" with respect to the same.
When Capital Cell receives a Project registration request through the User Area, it will analyze the information provided and will contact the Promoter directly to request any clarifications or additional specifications it may find appropriate. For such purposes, Capital Cell may provide lists or forms listing the minimum information necessary to analyze the eligibility of each Project in accordance with these PFP Service Conditions.
The information provided by the Developer must be complete, truthful and sufficient. Capital Cell will maintain the confidentiality of the information provided at all times, and will use it exclusively for the purpose of verifying the seriousness of the proposed Project and the personal conditions and identity of the Developer.
Capital Cell may carry out the inquiries and verifications it deems pertinent in any public registry (including but not limited to the Mercantile, Property, Movable Property, Trademark and Patent Registries, etc.), as well as in registries of unpaid debts and other publicly accessible databases (public or privately owned) in relation to the Promoter, its current or planned partners and administrators and the entities of its business group, if applicable. For such purposes, Capital Cell may request the provision of funds in its favor by the Promoter, indicating the sources to be used and the estimated costs thereof. Once the search for information has been carried out, Capital Cell will issue the corresponding invoice, charging the costs incurred.
Capital Cell in order to evaluate the Project, prove its identity, prevent fraud and incorporate the data in the Publication Agreement, may request from the Promoter, among others, the following documentation and information:
- Document certifying the identity of the administrators and partners.
- Deeds of incorporation, appointment of directors, powers of attorney, purchase and sale, capital increase, etc.
- Business plan that will contain, among other things, what the project consists of, the business opportunity, a SWOT analysis, project forecast, profitability, ROI, financing, etc.
- Credit Incident Verification: Balance Sheet and Income Statement for the current year. Actual financing numbers.
Likewise, Capital Cell may perform a legal and financial audit(due diligence) for which Capital Cell will request from the Promoter, among others, an extract of the Project, product or service object of the Project, market and detected need, information related to the investment team, finances and activity of the Promoter company.
The information and documentation that Capital Cell may request from the Promoter may vary depending on the stage and size of the Promoter company.
3.2. Entity for the promotion of the Project
The Projects published on the Portal must be carried out through an entity with legal personality duly constituted in accordance with Spanish law. In the event that the Project is proposed by a natural person or by an entity that does not meet the above conditions, the identity and other data corresponding to the legal entity that will act as Promoter of the Project must be specified.
In the event that the Promoter entity is not incorporated at the time the request for publication of the Project is made, all information regarding the entity to be incorporated must be provided to Capital Cell , including in particular the legal form chosen, composition and ownership of its capital, governing and administrative bodies, registered office and other data required by Capital Cell.
For the publication of the Project in the Portal, the Promoter entity must be validly constituted. However, the publication of Projects by entities in the process of incorporation will be admitted when the pending procedure is the registration in the corresponding public registry, provided that such registration has been requested and is in process. In such case, the Publication Agreement shall establish a maximum term for the complete registration of the Promoter entity, the non-compliance of which shall determine the cancellation of the financing round, with the effects set forth in Clause 3.7 for the case of withdrawal by the Promoter.
The promoters or partners of the Promoter, the administrative body of the Promoter or the members of its Board of Directors may not be disqualified in accordance with the provisions of Law 22/2003, of July 9, 2003, on Bankruptcy, nor may they be serving a sentence for committing crimes or misdemeanors against assets, money laundering, the socioeconomic order, the Public Treasury or Social Security.
3.3. Business definition of the Project
The Projects that are advertised on the Portal must comply with certain specifications regarding the information that will be published. Such specifications are intended to allow a comparison between one Project and another on equal terms, and to allow the strengths and risks of each Project to be presented in a clear, homogeneous, non-discriminatory and transparent manner.
The Promoter shall provide a general description of the Project to be published by the Portal that shall be concise and in non-technical language, which may provide the necessary information to enable an average investor to make an informed judgment on the Project's financing decision.
During the admission process of a Project, Capital Cell may provide the Promoter with a template or format to which the presentation of the Project and the business project it involves must be adapted. In those cases in which the Promoter does not have or has not developed the necessary information to complete this template, Capital Cell may propose the participation of specialized professionals who can support the Promoter in the complete development of the business project. The services of such professionals will be subject to the fees that they freely agree with the Promoter.
The Promoter shall be responsible to investors for the information it provides to Capital Cell for publication, exempting Capital Cell from any liability arising in this regard.
3.4. Compliance with legal and contractual obligations
It is the Promoter's responsibility to strictly comply with all legal and contractual obligations applicable to it, including in particular without limitation:
Processing and obtaining the administrative licenses and permits required according to the scope of the activity and the nature of the Project, including in particular the activity licenses and permits and those related to environmental regulations.
Fiscal, tax and social security obligations, making the corresponding declarations and settlements in due time and form and paying the corresponding amounts on their respective due dates.
Obligations of a contractual nature with third parties, and must refrain from using the Portal in such a way that implies a breach of such obligations that may negatively affect the implementation and development of the Project.
Compliance with the requirements and procedures applicable to the implementation of the investments and disbursements resulting from the financing round announced in the Portal.
3.5. Publication of the Project in the Portal and initiation of the financing round.
As soon as Capital Cell has completed to its satisfaction the checks indicated in section 3.2 above and the Developer has provided it with the information relating to the Project in accordance with the specifications referred to in section 3.3, Capital Cell and the Developer shall enter into a publication agreement (the "Publication Agreement") aimed at regulating the conditions of publication, containing the stipulations they deem necessary to adapt and implement the provisions of these PFP Service Conditions to the particular characteristics of the Project.
In particular, the Publication Agreement shall contain:
- the contents to be published on the Portal in connection with the Project;
- the ways in which the participation of Investors in the project will take place;
- the estimated profitability of the business object of the Project and the data on the basis of which such estimate has been made in accordance with the criteria set forth in the document to be mentioned.
- the estimated return offered to the Investors for their investment in accordance with the Project Return Calculation Procedure;
- the term of the financing round and the minimum fundraising target necessary for the realization of the Project;
- the structure of income and expenses of the Project and, in particular, the amount of the remuneration of the directors of the Promoting entity, as well as, if applicable, of its partners and related persons rendering services to the Project;
- the persons or categories of persons (defined in objective terms, i.e.: competitors, persons specially related to them or to the Promoters, etc.) whose participation as Investors shall not be admitted to the Project;
- any other information or stipulation that the parties deem necessary for the best definition of the contents to be published and the most effective regulation of their internal relations.
3.6. Form of participative financing
The participative financing of the Projects by the Investors will consist of their participation in the capital stock of the Promoter companies.
For this purpose, the Promoters will take the form of a limited liability company or a public limited company as provided in Royal Legislative Decree 1/2010, of July 2, 2010, approving the revised text of the Capital Companies Act (the "LSC").
Such Promoters may offer the participation of the Investors in their capital stock, by means of the assumption or subscription by the Investors of new corporate participations or shares to be issued within the framework of a capital increase.
The shares issued by the Promoter may be considered as non-voting shares as provided for in Articles 98 and following of the Capital Companies Law. In this case, the profitability of the investment will be determined by a preferential dividend consisting of a minimum annual dividend, fixed or variable, which will be established in the Promoter's Articles of Association and which will be determined through the aforementioned parameters indicative of the evolution of the Project. Likewise, the Promoter's Articles of Association may establish certain clauses (e.g., rights to accompany or carry forward in the event of the sale of a majority percentage of the company in which they have invested Invested) to regulate the divestment channels available to the Investors for the recovery of the paid-up capital.
3.7. Promoter's right of withdrawal
The Promoter may withdraw from the financing round at any time prior to the deadline set for the conclusion of the financing round.
The Publication Agreement shall establish the penalty to be paid by the Promoter in favor of Capital Cell due to the withdrawal, as well as the additional guarantees necessary to avoid the use of this right to the detriment of the rights and expectations of the Investors and Capital Cell. In any case, the exercise of this right by the Promoter shall comply with the principles of good faith and transparency, and may not be used as a way of taking advantage of the public knowledge of the Project after its publication on the Portal, excluding the payment of the fees provided for in favor of Capital Cell.
The process for the return of amounts that have been disbursed by the Investors so far by means of a payment gateway shall be regulated in accordance with the provisions of point 4.4.3 of these PFP Service Conditions.
3.8. Information regarding the outcome of the financing round
The Promoter shall keep Capital Cell informed about the status of the financing round, so that the progress of the fundraising at each moment is duly reflected in the Portal for the information of Registered Users and Investors, and in particular for the purpose of determining the achievement of the minimum thresholds that determine the success of the financing round.
3.9. Relationship with Investors
Although the terms to be offered to the Investors through the Portal will be set forth in the Publishing Agreement and the Investment Agreement published and entered into through the Portal, Capital Cell will have no involvement in the relationship established between the Promoter and the Investors as a result of the financing round or the contracts entered into between them.
Consequently, the Promoter and the Investors shall be solely responsible for the compliance with the Investment Agreement, as well as with these Conditions, and Capital Cell shall not be held responsible for any liability to the Promoter or the Investors as a consequence of the total or partial breach by any of them of the terms and conditions set forth in the aforementioned agreements.
3.10. Diligent execution of the Project and guarantees of transparency.
The Promoter shall develop the Project under the terms that have been published in the Portal and in conditions of transparency with the Investors.
For such purposes, the obligations assumed by the Promoter with respect to the Investors by virtue of the Investment Agreement shall include the duty to provide a periodic report on the development of the Project, indicating compliance with the milestones and objectives foreseen, as well as, if applicable, any deviations from the initial forecasts and estimates.
The Publication Agreement and the Investment Agreement shall regulate the periodicity of such reports and their minimum contents, in accordance with the characteristics of the Project and the Promoter. Likewise, such agreements shall regulate the transparency guarantees established for the benefit of the Investors, including in particular the obligation to submit the annual accounts of the Promoter to verification and audit report as provided in articles 263 and following of the LSC, even if the Promoter is not legally obliged to such verification.
3.11. Cost of Services
Capital Cell shall be entitled to receive from the Promoter a commission calculated as a percentage of the total investments raised by the Project during the financing round.
The Publication Agreement shall establish the means and terms of payment of such commission by the Promoter, as well as the percentage of commission applicable to each Project, according to the following scale:
Amount of total investment requested
Less than €50,000
From 50.000€ to 200.000€.
From 200.000,01€ to 600.000€.
From 600.000,01€ to 1.500.000€.
More than 1,500,000
To be determined by specific agreement.
In any case, the amount of the commission of Capital Cell will be increased by the rate corresponding to the Value Added Tax applicable at any time.
Likewise, the following is a detail of the applicable rates (VAT not included) for each of the different services that Capital Cell will offer to the Promoter Clients:
- For the tasks of reception, selection and publication of projects in its portal, as well as for the development, establishment and operation of communication channels to facilitate the contracting of financing between investors and Promoters. 250 €.
This commission will be billed regardless of the success of the Round.
- Advice to the Promoters in connection with the publication of the project on the platform, including the provision of services and advice in the areas of information technology, marketing, advertising and design 800 €.
This is an optional service that will only be billed in the event that it is specifically contracted by the Promoter client and regardless of whether the financing round is successfully closed.
- Analysis of the projects received, determination of the level of risk that each project implies for the investors and determination of any other variable that may be useful for the investors to make the investment decision Free of charge.
- Enabling remote communication channels for users, investors and promoters to contact each other directly before, during or after the financing of the project. Free of charge.
This service will be provided indefinitely, and the remuneration for this service will be included in the success fees invoiced by Capital Cell in the event of a successful closing of the financing round.
- Provision to the parties of the model contracts required for participation in the projects. 2.500 €.
This is an optional service that will only be billed in the event that it is specifically contracted by the Promoter client and regardless of whether the financing round is successfully closed. This service will be provided in the event that the standard contractual templates made available to the Client by Capital Cell need to be adapted for the financing round in view of the specific circumstances of the Promoter.
- Transmission to the investors of the information provided by the Promoter on the evolution of the project, as well as on the most relevant corporate events. Free of charge.
Additionally, Capital Cell may charge the expenses incurred on behalf of the client Promoter (e.g.: travel, translations, legal advice for review of the Bylaws and legal information of the Promoter, preparation of communication and advertising material such as presentations, videos, websites, etc.), for which it will issue the corresponding invoices for expenses and supplies, providing a copy of the supporting documents that prove the same.
Expenses will be reimbursed in accordance with the provisions of the publication agreement that Capital Cell subscribes with each client and in any case those expenses that are directly related to and caused by the services provided by Capital Cell to its clients will be re-invoiced.
4. Project selection and investment realization
4.1. Access to the list and to the information related to the Projects
Through the User Area, Registered Users may access the list of Projects that are being published on the Portal at any given time.
The list will contain a minimum description of each Project, as well as the minimum amount necessary for the effectiveness of the Project and achievement of the financing round at any given time.
Likewise, each Project will have a specific page (the "Project Page"), which will be accessible from the list of Projects, which will contain all the information provided by the Promoter in relation to the Project, as well as the terms and conditions offered for the participation of the Investors in the Project.
4.2. Project Selection by the Investor
At the moment in which a Registered User decides to participate in a certain Project and to carry out the necessary investment to such effects, he/she will have to manifest it through the menu of options that will be made available to him/her in the Page of the Project. From the moment in which it completes the necessary steps and gives its consent to the commitments that are indicated in the same one, the registered User will assume the condition of Investor to the effects of the present Conditions.
4.3. Investment Agreement between the Promoter and the Investor
The investment decision expressed by the Investor through the Portal on the Project Page, shall entail its consent to the subscription or formalization by the Investor of the Investment Agreement referred to in these Conditions.
The Investment Agreement will detail the procedure to be applied for the execution of the corresponding capital increase, the number of shares or equity interests to be attributed to each Investor as a result of the disbursement made and the other conditions relating to the relationship (i) between the Investor and the Promoter, (ii) between the Investor and the reference partner(s) of the Promoter, and (iii) between such reference partner(s) and the Project.
Likewise, a draft of the Bylaws to be adopted by the Promoter simultaneously with the approval of the capital increase will be included as an annex, which should reflect the terms of the Investment Agreement as far as possible within the framework of the corporate regulations applicable at any given time.
The Investor will express its consent to the Investment Agreement through the Portal, and a copy of the same will be sent in electronic format to the Investor's e-mail address declared to Capital Cell at any given time.
Additionally, the Investment Agreement itself will provide that at the time the disbursement is made, a copy duly signed by the Promoter will be made available to the Investor, as well as, if applicable, a copy of the instruments related to the capital increase once they have been granted.
As indicated in Clause 3.9 of these Conditions, the Investment Agreement shall constitute a direct contractual link between the Investor and the Promoter and between the Investors, correspondingly, to which Capital Cell is not a party. In particular, Capital Cell does not guarantee the performance by the Promoter or the Investors of the obligations incumbent on each of them under the Investment Agreement, nor the veracity of the information published on the Portal on the basis of which the Investor has made its investment decision.
It is the Investor's responsibility to analyze the characteristics of each Project and its Promoters, its viability prospects and the probability of compliance with the estimated profitability of its investment. Likewise, in case of breach by the Promoter of any of its obligations, it shall be the sole responsibility of the Investor to exercise the corresponding legal actions in defense of its interest.
4.4. Investment disbursement
4.4.1. Methods of payment
As part of the process through which the Investor will express its consent to the Investment Agreement, the Portal offers the Investor the Lemon Way payment entity, both to make disbursements by credit card charge and by bank transfer. In this sense, both Capital Cell, as well as the Promoter and the Investor must be holders of an E-wallet in Lemon Way, whose platform is integrated in the Portal.
The opening and maintenance of the E-wallet does not have any cost for the Investor, and does not entail opening or maintenance commissions, neither for the transfers issued nor for those received.
Instead, Lemon Way will charge Promoters for the opening and maintenance of the E-wallet one of the following fees:
- If the investment is made by credit card charge, a commission of 0.20 € for each investment, plus 0.5% of the amount received from each Investor; or
- If the investment is made by bank transfer, a fee of €0.20 for each investment, plus 0.7% of the amount received from each Investor.
The access data of such E-wallet (password and user name provided by Lemon Way at the time of registration) will be secret and non-transferable, so that only the holder of the E-wallet can use them.
The E-wallet will be associated to a bank account owned by the client and opened in a credit institution ("Associated Account"), which will be the account in which the charges or deposits ordered by said client will be made. Therefore, the Investors who wish to invest in a project published in Capital Cell must deposit in their E-wallet (by means of transfer or by charge in their bank card) the funds from their Associated Account.
The mechanism for the communication of customer data and the execution of the payment will be determined by the relevant payment institution.
The Investor, by virtue of these PFP Terms of Services, authorizes and mandates Capital Cell in relation to the operational management and issuance of payment orders against the funds deposited by the Investor in its E-wallet at Lemon Way.
In this regard, the Investor acknowledges and accepts that Capital Cell, in its capacity as "Web Partner" as such term is defined in the contractual documentation entered into between the Investor and Lemon Way, will only authorize payments from its E-wallet in Lemon Way in favor of (i) those Promoters whose projects the Investor has committed to finance or invest in through the Portal or (ii) the Investor itself; all in accordance with the provisions of the Investment Agreement and these PFP Service Terms and Conditions and in accordance with the instructions that the Investor has transmitted from time to time to Capital Cell through the Portal.
The validity of the Investment Agreement shall be subject to the condition precedent consisting in the effective sufficiency of the funds blocked in such E-wallet in Lemon Way within seven (7) days from the date of the execution of the Agreement. In the absence of such funds, the Investment Agreement shall not enter into force and shall be null and void. To this effect, Capital Cell will send a notice to the Investor when, after three (3) days, sufficient funds have not been deposited in Lemon Way's account.
In the event that the conditions foreseen for the disbursement of the investment are met, Capital Cell will order the unblocking of the amounts in the Promoter's E-wallet, as described in section 4.5 below.
4.4.2. Return of Amounts to the Investor. Repentance period.
Capital Cell shall order Lemon Way to release the Investor's blocked funds and thereby release the Investor from the commitment to make the committed disbursements, all under the conditions to be stated, in the following cases:
Repentance period: Both the Investor and the Promoter shall have a period of seven (7) days from the date of execution of the respective Investment Agreement to express their "repentance" of the same, leaving it without the need to state any reason whatsoever. By exception, the period of repentance will be shorter in those Investment Agreements entered into less than 7 days prior to the deadline of the financing round, so that it may only be exercised up to the day before said deadline.
For the purpose of giving effect to its repentance, the Promoter or the Investor, as the case may be, shall communicate to its counterparty and to Capital Cell (to the address info@CapitalCell.net) of their will to exercise this option, and they must send this communication within the indicated period of repentance.
- In the event that this option is exercised by the Investor, Capital Cell will order the release in favor of the Investor of the amount that has been blocked in the Promoter's E-wallet (in accordance with point 4.4.1), deducting from the same the cost of commissions of the payment gateway used, and the Investment Agreement will be null and void.
- In the event that it is the Promoter who exercises this power, Capital Cell will order the release in favor of the Investor of the amount of the Investors that had been blocked, deducting the referred commissions, and the Promoter will be obliged to pay the Investor, by way of compensation, an amount equivalent to the amount of said commissions.
On the other hand, in the event that the financing round is unsuccessful, Capital Cell will order the release of the amount committed by the Investor and transferred by the Investor through the payment institution.
In the event of withdrawal by the Promoter as provided in section 3.7, Capital Cell will order the release of the amount that has been blocked and the Promoter will be obliged (i) to pay the Investor a penalty equivalent to seven and a half (7.5%) percent of the investment committed by the Investor; and (ii) to pay Capital Cell a percentage to be determined in the Publication Agreement of the amount disbursed by all the Investors, as a service fee.
Likewise, in the event that it detects the existence of false, incomplete or outdated data in the information of each Investor that Capital Cell has at any time or that has been provided during the process of adhesion to a Project, Capital Cell may revoke the Investor's investment in the Project in question. In such case, Capital Cell will return to the Investor the amount paid, without prejudice to the right of Capital Cell and the Promoter to claim from the Investor the reimbursement of damages and additional costs caused by this circumstance.
4.4.3. Investor Waiting List
The Project Page may contemplate the incorporation of Investors on the waiting list when, having reached the financing target, the deadline for the financing round has not expired.
In the event that when the time comes to disburse the funds to the Promoter, the funds are not fully available (due to the timely exercise of the right of withdrawal by one or more Investors as set forth in section 4.4.2, Capital Cell will communicate such circumstance to the Promoter and to the Investors, opening a new term (the "Additional Term") during which the Investors registered in the waiting list will be offered to make the investment offered by subscribing the corresponding Investment Agreement, as provided in section 4.3.
The Additional Term shall have a duration of thirty (30) days as from the communication addressed to Capital Cell, except when in such communication a shorter duration is attributed to it. The disbursement by the Investors that join the Project during the Additional Term shall be made in accordance with section 4.4.1.
Once the investment target has been effectively reached, which will determine the definitive success of the financing round, proceed as provided in section 4.5 below.
4.5. Compliance with the conditions of disbursement and delivery of funds to the Promoter through the capital increase.
4.5.1. Determination of compliance with the conditions for investment disbursement.
When Capital Cell, based on the information originated through the Portal and the information provided by the Promoter pursuant to section 3.8, considers, within two (2) business days following the end of the investment period, that the conditions for the disbursement of the investment in a given Project have been met, i.e., that the planned investment objective has been met, it will proceed to communicate such circumstance to the Promoter and the Investors by e-mail, indicating whether the success of the financing round is definitive (the "Communication of Success of the Round").
In the event that the financing objective has not been reached within the period set for this purpose, Capital Cell will instruct Lemon Way to immediately reimburse the amounts from the Promoter's E-wallet to the Investors' E-wallets, who may either use the money immediately or use it to invest in any other project they consider interesting (according to the same procedure provided up to this moment).
4.5.2. Adoption of corporate resolutions and forwarding of documentation to Capital Cell
Once the success of the financing round is determined and the disbursements made by the Investors are accredited, in accordance with the provisions of the Investment Agreement, the corresponding capital increase will be formalized and executed by the Promoter.
In execution of these contractual provisions, the following actions will be carried out within seven (7) working days following the submission of the Communication of Success of the Round by Capital Cell:
- The Promoter, through its representatives with sufficient powers, shall subscribe and sign a copy of the Investment Agreement. This agreement shall also be signed, in a personal capacity, by the members of the administrative body and the partners of the Promoter, for the purposes to be stated in section 4.5.5.
- The partners of the Promoter will hold a General Shareholders' Meeting, on a universal basis, at which they will approve the capital increase through which the investment made by each of the Investors will be capitalized and will amend the Articles of Association in accordance with the provisions of the Investment Agreements.
- The person empowered to certify the corporate resolutions of the Promoter will issue the corresponding certifications of the resolutions adopted by the General Shareholders' Meeting indicated above, and will proceed to notarize them (hereinafter, the "Public Deed").
Once the public deed has been executed and a copy has been issued by the corresponding notary, the following business day it will be filed for registration with the corresponding Mercantile Registry.
The Promoter must send to Capital Cell original copies of the Investment Agreement duly signed by all the parties, as well as a simple copy of the Public Deed and proof of filing (filing entry) of the same with the Commercial Registry.
Likewise, in the event that the publication of the Project on the Portal has taken place while the Developer is in the process of incorporation, as provided in section 3.2, the Developer shall also send to Capital Cell the documentation that proves that the incorporation process has been duly completed.
4.5.3. Registration of the Public Deed in the Mercantile Registry
In any case, it will be the Promoter's responsibility to carry out the necessary actions to ensure the correct registration of the Public Deed of the capital increase and modification of the by-laws in the Commercial Registry. When the registration of the Public Deed takes place, the Promoter will immediately inform Capital Cell and its financial institution and will send them a copy of the Public Deed with its registration data in the Commercial Registry.
4.5.4. Delivery of funds to the Promoter and remittance of documentation to the Investors
Once the documentation referred to in the preceding paragraph has been received, the Promoter may freely dispose of the funds related to the investment.
Capital Cell will be responsible for sending a copy of the Public Deed to all Investors by email, and the Public Deed will also be available in the section of the Portal reserved for Investors who have participated in the financing campaign.
4.5.5. Deadline for registration of corporate resolutions in the Mercantile Registry
When four (4) months have elapsed since the Communication of the Success of the Round without the documents evidencing the execution of the capital increase having been registered in the Register, the Investors who have made contributions may terminate the Investment Agreement and demand from the administrators and partners of the Promoter the restitution of the contributions made, increased by seven and a half (7.5) percent.
For such purposes, the administrators and partners of the Promoter shall have personally subscribed the Investment Agreement, as provided in section 4.5.2.
5. Investor Conditions
The Investors, throughout the registration process, must provide Capital Cell with all the information necessary to determine the category of investor to which they belong in accordance with the provisions of the LFFE. Investors may be "accredited" or "non-accredited".
5.1. Accredited investors:
The term "accredited" Investor is understood to mean:
- Financial institutions and other legal entities that, in order to operate in the financial markets, must be authorized or regulated by States, whether or not they are members of the European Union.
These include credit institutions, investment services companies, insurance companies, collective investment institutions and their management companies, pension funds and their management companies, securitization funds and their management companies, those who habitually deal in commodities and commodity derivatives, as well as operators who contract on their own behalf and other institutional investors.
- States and regional administrations, public bodies that manage public debt, central banks and international and supranational bodies, such as the World Bank, the International Monetary Fund, the European Central Bank, the European Investment Bank and others of a similar nature.
- Institutional investors who, not included in (a) above, have as a regular activity to invest in securities or other financial instruments.
- Entrepreneurs who individually meet at least two of the following conditions:
- That the total of the asset items be equal to or greater than 1 million euros;
- The amount of its annual turnover is equal to or greater than 2 million Euros; and
- Its equity must be equal to or greater than 300,000 euros.
- Individuals who meet the following conditions:
- Proof of an annual income of more than 50,000 euros or financial assets of more than 100,000 euros, and
- Request to be considered as an accredited investor in advance, and expressly waive their treatment as a "non-accredited" client. The admission of the request and waiver shall be made in accordance with the provisions of section 5.3 below and shall be conditional upon Capital Cell making an appropriate assessment of the client's experience and knowledge, and ensuring that he/she is able to make his/her own investment decisions and understands his/her risks.
- Small and medium-sized companies and legal entities not mentioned in the preceding paragraphs when they comply with the provisions of number (ii) of the preceding letter.
In addition to the aforementioned persons, those individuals or legal entities that can prove that they have contracted the financial advisory service on the financing services intermediated by the Portal from an authorized investment services company will also be considered as Accredited Investors.
Investors accredited under letters (e) and (f) of this section who do not provide financing or invest in a Project within twelve (12) months, shall lose their accredited status, although they may recover it when they comply with the requirements set forth in the aforementioned letters. Likewise, they shall lose the status of borrowers when they so request in writing to Capital Cell.
5.2. Non-accredited investors
Any Investor who does not comply with the provisions of section 5.1 above shall be considered as "non-accredited", which implies (a) a higher degree of protection; and (b) the limitation to its ability to invest in Projects published in the Portal and in third party equity financing portals.
Non-Accredited Investors must declare to Capital Cell, both during the registration process and before making any investment in the Portal, whether they comply with the investment limits set forth in the LFFE and must respond to a questionnaire that allows Capital Cell to verify that the investment by the Non-Accredited Investor is appropriate for him/her taking into consideration his/her investment and risk profile, his/her financial capacity and his/her knowledge and experience in investments of this type.
5.3. Verification of identity and incompatibilities.
Lemon Way (or the payment gateway used by Capital Cell from time to time) or, if the payment gateway is not enabled, Capital Cell itself, shall verify the identity of the Investor in any case, without prejudice to the provisions of the applicable regulations on the prevention of money laundering and terrorist financing, and shall inform Capital Cell of the results of such verification.
For such purposes, the Investor undertakes to provide Capital Cell and/or Lemon Way with the necessary documentation and accepts that the failure to provide the documentation that allows the verification of the Investor's identity will entitle Capital Cell to deny the Investor's registration as an Investor, as well as the realization of investments through the Portal.
The Investors and, if applicable, their partners or administrators may not (i) be disqualified in accordance with the provisions of Law 22/2003 of July 9, 2003, on Bankruptcy or equivalent regulations of another Member State of the European Union; or (ii) be serving a sentence for the commission of crimes or offenses against assets, money laundering, socioeconomic order, the Public Treasury and Social Security.
By accepting these PFP Service Conditions, the Investor declares that he/she does not find him/herself in any of the above circumstances.
5.4. Investor Representations.
The financing/investment materialized by the Investors through the Portal in accordance with the Investment Agreement and these PFP Service Conditions is in their name, on their account and at their risk.
In this sense, the Investor knows and assumes the risk that the operations may not be successful, in case the Promoter does not pay, totally or partially, the payments to be made to the Investors, or pays them late, and that the investment in participative financing projects published in the Portal implies the assumption of the risk of total or partial loss of the capital Invested, the risk of not obtaining the expected monetary return and the risk of lack of liquidity of the investment.
Likewise, in the case of investment through the acquisition of shares or equity interests issued or created by the Promoter, the Investor declares to be aware that there is a risk of dilution of its participation in the Promoter company, the risk of not receiving dividends and of not influencing the management of the same.
Notwithstanding the foregoing, in the process of an Investor's investment in the Portal, the Investor must confirm, through the Portal, that it complies with the law on the amount and number of Projects in which it participates as an investor and in which it participates as a Promoter so that Capital Cell can validate that it complies with the requirements set forth in these PFP Service Conditions and in the regulations in force.
Any Investor requesting consideration as an Accredited Investor shall expressly declare through the Portal that it has been advised that by being considered an Accredited Investor it is exposed to greater risks and enjoys less protection with respect to investment in a Project. Said expression may be made at the same time as those referred to in letters e) and f) of section 5.1 above and these may be made through the Portal, following the instructions indicated therein.
5.5. Limits to investment in projects.
5.5.1. Limits applicable to Promoters and their Projects.
The Promoters will request for each Project an investment or financing objective and a maximum term to be able to participate in the same, taking into consideration the previous study of the Project and the documentation/information provided by Capital Cell during the evaluation process of the same.
The maximum amount of fundraising for each Project through the Capital Cell Portal may not exceed five million euros (€5,000,000) in the case of Projects aimed exclusively at accredited Investors and two million euros (€2,000,000) in other cases, with the possibility of successive rounds of financing not exceeding the aforementioned amounts on an annual basis, as the case may be, provided that the Project so permits and Capital Cell approves it.
Capital Cell may determine for each Project that the financing target and/or the maximum term to be able to participate in the financing may be exceeded up to a maximum of 25%, provided that the Promoter and the Investors have been previously informed of such possibility and of the events that give rise to such an overrun.
However, if the financing objective is not reached within the established time period or, if applicable, the permitted limit is exceeded, Capital Cell will proceed to cancel the Project in question, notifying both the Investors who have committed their funds and the Promoter.
Notwithstanding the provisions of the preceding paragraphs, Capital Cell may establish, if the Project and the Promoter so permit, that the Project will receive financing when at least 90% of the financing objective has been reached, after deducting the participation in the Project that Capital Cell may have, if any, in said Project, and provided that the Investors and the Promoter are informed, prior to the commitment of the funds, of such possibility and of the events giving rise thereto.
5.5.2. Limits applicable to Investors.
Those Investors who are considered non-accredited will have the following limitations for investment in Projects:
- No non-accredited Investor may invest or commit to invest through the Portal more than three thousand euros (€3,000) in the same Project.
- No non-accredited Investor may invest or commit to invest more than ten thousand euros (€10,000) in a period of twelve (12) months, in projects published on the Portal.
For these purposes, Capital Cell will require from the non-accredited Investors the statement that their total investment in the last twelve (12) months in projects published by the set of crowdfunding portals does not exceed the threshold of ten thousand euros (€10,000), taking into account the specific operation that they carry out or intend to carry out through the Portal.
6. Mechanisms in the event of termination of activity
Given that the Portal is based on software, hardware and Internet systems, Capital Cell does not guarantee continuous or uninterrupted access and use of the Portal. Consequently, the system may eventually be unavailable due to acts of God or force majeure, as well as technical difficulties or Internet failures, or any other circumstance beyond the control of Capital Cell. In such cases, efforts will be made to restore it as quickly as possible, without any liability being attributable to Capital Cell.
Capital Cell shall not be liable for any errors or omissions contained in the Portal. Customers may not impute to Capital Cell any liability or demand payment for damages due to technical difficulties or failures in the systems or on the Internet.
The Portal is hosted in a securedata center owned by a specialized hosting company, whose service availability is guaranteed.
However, it is impossible to guarantee 100% service availability as there are many agents involved in the provision of the service.
Likewise, in the event of definitive cessation of the activity of Capital Cell for any reason, the contractual relationship between Capital Cell and the Investor shall be terminated in accordance with Clause 11. In such event, the Investor acknowledges that such termination shall not affect the provisions of the Investment Agreement, if any, entered into between the Investors and the Promoter and between the Investors and each other, which shall remain in force during the term established in such agreements and shall be governed by the provisions thereof. In such case, the Investors shall coordinate with the Promoter the provision by the latter of the appropriate mechanisms for the communication between the Investors and the Promoter and between the Investors themselves in the development of their relationship under the Investment Agreement, without the Investors having the right to claim to Capital Cell for any concept whatsoever.
7. Measures taken by Capital Cell to minimize the risk of fraud and operational risk
Capital Cell shall at all times maintain the necessary procedures and policies to minimize the risk of fraud in its operations by the following means:
- Measures to minimize the risk of fraud:
Considering the type of business and investments made with its services, the possibility of fraud can occur both internally and externally at Capital Cell , for which the following procedures and measures will be implemented:
- Before accepting a Project and a Promoter, Capital Cell performs an identification of the Promoter by crossing the data with the public data available in the official records and by requesting the Promoter to provide the necessary supporting documentation of the Project to determine: (1) the reality of the Project and (2) that the Promoter has the title and legal capacity to undertake it. This identification and analysis of the reality of the Project includes:
- An analysis of the market in which the Promoter circumscribes the Project is carried out by the internal teams of Capital Cell.
- Capital Cell reviews with the necessary professionals the contracts that should give shape to the Project to ensure the enforceability of the obligations under them.
- Analysis of the corresponding public records.
- Capital Cell periodically review its systems to detect the transactions that are made using the Portal and match them with the information it receives from the Promoters and the requests for disbursements and payments that have been made with each Project so that there can be no misuse or improper use of the Portal applications by its employees, the Investors or the Promoters.
- Capital Cell will have an internally implemented and updated crime prevention plan that will allow its employees to know what actions they may not carry out and, if necessary, will serve to initiate disciplinary actions against employees who violate it.
- Measures to minimize operational risk:
- Capital Cell The company shall be aware of the main operational risk aspects of its operations, the differentiated risk categories, approve and periodically review the framework it uses for operational risk management. This framework shall provide an enterprise-wide definition of operational risk and set out the principles for defining, assessing, monitoring and controlling or mitigating operational risk.
- On a recurring basis, Capital Cell will carry out an internal audit of its processes to verify that they are efficient and allow the ordinary development of its activities in accordance with the approved policies, guidelines and orientations.
- The senior management of Capital Cell will translate the established operational risk management framework into concrete policies, processes and procedures that can be applied and tested within the different business units and will ensure that Capital Cell employees comply with them appropriately.
- As part of the essential processes that Capital Cell will implement in its operations, the following tasks will be performed:
- High-level studies on the progress made by Capital Cell to achieve operational risk control objectives.
- Verification of compliance with management controls.
- Establish policies, processes and procedures for the analysis, treatment and resolution of cases of non-compliance.
- Establish a system of documented approvals and authorizations to ensure accountability to the most appropriate management level.
- Verification of compliance with the limits or maximums assigned for the risk.
- Establishment of safeguards for accessing and using the bank's assets and files.
- Recruitment of personnel with appropriate experience and training.
- Identification of business lines or products where performance is far from what is reasonably expected.
- Periodic verification and reconciliation of transactions and accounts on Capital Cell.
8. Retention of information.
Capital Cell will keep the information provided by the Investors, either through the Portal or by any other means, for a period of 5 years.
9. Conflicts of Interest and Related Projects.
9.1. Conflicts of interest.
Capital Cell maintains a conflict of interest management policy, which is published on the Portal.
9.2. Related projects.
Capital Cell may participate directly in Projects published on the Portal, provided that:
- Its participation does not exceed 10% of the financing objective of each Project nor does it control the Promoter, in the terms set forth in Article 42 of the Code of Commerce.
- Inform the Investors in a clear and accessible manner of the amount of their participation in each Project, or of their administrators, senior executives and partners with significant participation, and of the spouses or persons with whom they live in an analogous relationship of affectivity as well as their relatives up to the second degree of consanguinity or affinity.
Capital Cell will not participate in projects published by other crowdfunding platforms.
10. Procedures and means for the presentation of complaints and claims.
Any complaint or claim to be filed by the Investor must be made in accordance with the Customer Service procedure of Capital Cell, which is at all times available to the Customer on the Website.
11. Duration of the contractual relationship with Capital Cell.
The contractual relationship derived from these PFP Service Conditions is valid indefinitely, unless Capital Cell or the Investor decides to denounce it by written communication and terminate it at any time, in which case a minimum notice of fifteen days must be given, without prejudice to the provisions of the Investment Agreement that, if applicable, has been signed between the Investors and the Promoter, which shall remain in force during the term established in said contract and shall be governed by the provisions of the same.
Capital Cell may cancel the account of Registered Users at any time in which it detects an alleged breach of these PFP Terms of Services, without prior notice. This includes the possibility of cancelling the Projects in progress, in case of cancellation of the account of a Registered User who has the status of Promoter.
For its part, any Registered User may terminate its relationship with Capital Cell and close its account in the User Area through the sections and options expressly provided for that purpose.
The cancellation or closure of the Registered User's account shall not affect the validity of the disbursement commitments assumed by the Investor towards one or more Promoters, nor shall it put an end to the confidentiality obligations provided for in these PFP Service Conditions.
12. Intellectual and industrial property of the promoter
The Promoter shall refrain from using the Portal in such a way as to infringe the intellectual and industrial property rights of third parties. In particular, prior to the publication of the Project on the Portal, he must expressly declare in writing that he is the owner of all the intellectual and industrial property rights that form part of the Project.
Capital Cell reserves the right to cancel the financing round already initiated in the event that it becomes aware that the same incurs in a violation of such third party rights, being applicable to such situation the provisions of sections 3.7 and 4.4.3 for the case of cancellation of the financing round by the Promoter.
The publication of a Project on the Portal implies the granting to Capital Cell of an indefinite, free, irrevocable and non-exclusive license to reproduce, publish, adapt, modify and distribute the contents provided by the Promoter. This license is granted for the exclusive purpose of allowing the publication of the Project on the Portal, as well as the exhibition of such contents in the activities undertaken by Capital Cell for the promotion of the Portal and its Services.
Likewise, Capital Cell shall be authorized to modify the contents provided by the Promoter to the extent necessary to adapt them to the requirements and technical characteristics of the Portal and its graphic interface.
Notwithstanding the foregoing, the Promoter shall retain all intellectual and industrial property rights to which it is entitled in relation to the contents provided to Capital Cell within the framework of these PFP Terms of Service and the applicable Publishing Agreement. All Users, including those who assume the status of Investor with respect to the respective Project, shall refrain from any action that affects, infringes or undermines such rights of the Promoter. It is the Promoter's responsibility to take any legal action necessary for the full exercise of such rights, and Capital Cell shall have no obligation or liability whatsoever to guarantee and defend such rights of the Promoter against defaults by Investors, Users and/or any third parties.
13. Limits of liability and indemnity of Capital Cell
Capital Cell offers access to the Portal in the operating conditions in which it is found at any time, without assuming any commitment as to the constant and permanent accessibility and the correct functioning of the same at all times. In particular, Capital Cell does not guarantee or warrant:
- that the Portal will function correctly at all times and on any computer Portal from which it is accessed;
- that the information and content displayed on the Portal is correct, accurate or complete;
- that the use of the Portal and/or the provision of the Services are adequate for the achievement of the purposes by virtue of which the Users access the same;
- that the programming code corresponding to the Portal and its graphic interface, and in general any software element or document that is downloaded to the User's computer, comply with any particular level of security, so that the User who accesses the Portal does so at his own risk.
Capital Cell neither warrants nor is responsible for any information provided to any User by any means other than the Portal.
In any case, Capital Cell shall not be liable for direct or indirect damages, loss of profits, loss of opportunities, expenses incurred in work on behalf of third parties or loss of data affecting one or more Users.
In particular, Capital Cell shall not be liable in relation to damages and/or losses arising from:
- the content of the advertisements inserted in the Portal, nor the safety or convenience of contracting the goods and services offered by the advertisers, with whom Capital Cell does not have or claim to have any relationship or responsibility, and for whose performance and actions Capital Cell shall in no case be responsible;
- any changes to these PFP Terms of Service as provided for in Section 2.1;
- the existence of false, incomplete or outdated data in the information provided by the Registered User at the moment of registration in the User Area or after such moment;
- the disclosure by the Registered User of the identification data of his/her account in the Portal (user name and/or password), being the sole responsibility of the Registered User the maintenance of the strictest confidentiality of such information.
In any case in which, due to being outside the preceding casuistry, there is liability of Capital Cell, this liability shall be limited to the maximum amount of five thousand (5,000) euros per person and per year.
14. Conditions of confidentiality
14.1. Confidentiality obligations of Capital Cell
Capital Cell shall maintain the strictest confidentiality regarding any content or information provided to it by any Registered User, including Investors and Promoters, and shall not disclose or publish it except when expressly authorized to do so by the appropriate party in each case.
In particular, Capital Cell:
- will only publish on the Portal and/or provide to the Investors the information related to the Promoters and the Projects expressly set forth in the respective Publication Agreement;
- shall not keep the data and information provided to it by the Promoters that will not be published or communicated to the Investors, except when the Publication Agreement authorizes it to keep them;
- shall only provide to the Promoter of a Project the data relating to the Investors that are included in the corresponding Investment Agreement and that are necessary or useful for the establishment and/or development of such legal relationship between Promoter and Investor.
14.2. Confidentiality obligations of the Promoter
The Promoter shall maintain in the strictest confidence the identity of the Investors in its Project, as well as the amount and conditions of their investment, except when the maintenance of such confidentiality is incompatible with the execution of the formalities related to the investment itself, or when the disclosure of such data is imposed by virtue of a legal obligation or a requirement of a competent authority.
Likewise, the Promoter shall maintain the confidentiality of the terms of the Publication Agreement it enters into with Capital Cell, as well as in relation to any material or elements of intellectual and industrial property rights corresponding to Capital Cell, as provided in section 5.2 above, except when such materials or elements are publicly displayed on the Portal.
14.3. Confidentiality Obligations of Registered Users
The Registered Users shall maintain the most absolute confidentiality regarding any information related to the Promoters and the Projects they access through the Portal, including those with respect to which they are considered Investors.
Likewise, Registered Users shall maintain confidentiality in relation to any material or elements subject to the intellectual and industrial property of Capital Cell, as provided in paragraph 6 above, except when such materials or elements are exposed to the public on the Portal.
Communications addressed to Capital Cell may be sent by e-mail to the address info@Capitalcell.net or by post to the registered office listed in Clause 1.
The communications to the Registered Users will be made by electronic means or postal mail, to the address and/or domicile that the Registered User informs at every moment, and that he/she will have to keep updated.
16. Assignment of contractual position
Capital Cell reserves the right to assign both its contractual position under these PFP Terms of Service in its entirety and, partially, to assign certain rights derived from the same to any third party, without the prior consent of the Investor, provided that the applicable legislation so permits. Capital Cell will notify the Investor of the assignment in the terms in which it takes place, through the Portal.
The assignment of rights and/or of the contractual position, if any, shall in no case negatively affect the contractual position of the Investor.
The Investor may not, under any circumstances, assign its contractual position or any of its rights and obligations under these PFP Service Conditions.
Capital Cell reserves the right to subcontract with any third party its obligations under these PFP Service Conditions, in whole or in part, without the prior consent of the Investor.
17. Severability and nullity of clauses
These PFP Terms of Service and the other instruments to which they refer constitute the sole agreement between Users and Capital Cell, and supersede any other agreements, proposals and/or communications previously existing between the parties. In the event that any clause or section of these PFP Service Conditions is declared null and void or unenforceable, the application of such clause shall be limited or excluded, as the case may be, in the manner that least affects the validity and effectiveness of these PFP Service Conditions.
The non-exercise by any of the parties of any of their rights under these PFP Terms of Service does not imply the waiver of such rights, which must in any case be made expressly and in writing.
18. Competent court and applicable law
This agreement shall be governed by and construed in accordance with the laws of Spain.
Any dispute or controversy arising from these PFP Terms of Service, including in particular their validity, interpretation and performance, shall be submitted to the courts and tribunals of the city of Barcelona, and the Parties waive any other jurisdiction that may correspond to them, except when there is no express extension or submission of jurisdiction by virtue of mandatory law.