T&C - General Terms and Conditions - KlickOwn AG
General Terms and Conditions of KlickOwn AG for the use of the platform
Last update: November 30, 2019
KlickOwn AG, headquartered in Hamburg, with its registered office at Axel-Springer-Platz 3, 20355 Hamburg (hereinafter also referred to as "KlickOwn"), operates the crowd-investing platform "www.klickown.com" (hereinafter also referred to as the "Platform"). The platform enables visitors to retrieve the information provided on real estate projects and, after registering as a user, to subscribe to a tokenised bearer bond in the form of tokens.
KlickOwn offers the investment brokerage of financial instruments pursuant to § 1 para. 1a sentence 2 no. 1 exclusively as a contractually tied broker pursuant to § 2 para. 10 German Banking Act (KWG) in the name, on account and under the liability of NFS Netfonds Financial Service GmbH (NFS). In the opinion of the Federal Financial Supervisory Authority (BaFin), block-chain-based forms of investment are among the regulated financial instruments and, to the same extent as financial instruments, are covered by the NFS's assumption of liability. The following General Terms and Conditions (hereinafter referred to as "GTC") apply to all business relationships between KlickOwn and the (potential) investor or beneficial owner (hereinafter also referred to as the "Investor").
1. Definitions
For the purposes of these General Terms and Conditions ("GTC"), the following definitions shall apply in addition to the terms defined in the text:
2. Scope of application
Upon successful registration, a contractual relationship is established between KlickOwn and the users of the platform regarding the use of the platform in accordance with these General Terms and Conditions ("Platform Use Agreement"). The legal relationship between KlickOwn and the users of the platform is governed exclusively by the following provisions of these GTC. These GTC shall apply to all business relationships between KlickOwn and the users. The General Terms and Conditions of NFS Netfonds, which are to be concluded separately, shall also apply through a contractual relationship with NFS Netfonds Financial Service GmbH.
With the successful completion of the identification procedure in accordance with the Money Laundering Act and the registration on the brokerage platform, the investor accepts these GTC of KlickOwn in a legally binding manner. If, following the identification of the identification service provider, marginal deviations from the information provided by the provider are detected, the contractual documents will be adjusted retroactively on the basis of these deviations. The investor hereby declares his agreement. Please note that the legal relationship between KlickOwn and the user is governed exclusively by the provisions of these GTC.
VAT-ID according to §27 a German VAT act: DE 326024801
3. Object of business
KlickOwn offers financial services and acts as a tied broker for investments under the liability umbrella of NFS Netfonds Financial Service GmbH (NFS). In the opinion of the Federal Financial Supervisory Authority (BaFin), blockchain-based forms of investment are among the regulated financial instruments and are included in the NFS's assumption of liability in the same way as financial instruments.
In the course of investment brokerage, KlickOwn presents the issuer's financial instruments to investors and informs them about them. KlickOwn primarily offers its services online. KlickOwn is not permitted to acquire ownership or possession of the investor's funds on behalf of third parties as part of the brokerage process.
KlickOwn operates the platform accessible under https://klickown.com. In addition to providing information on investment opportunities, the platform also serves to broker financial instruments. KlickOwn expressly does not provide any financial, investment or tax advice. Investors are advised to seek advice from experts before subscribing to any capital investment brokered by KlickOwn.
4. KlickOwn is a contractually bound intermediary of NFS Netfonds Financial Service GmbH (NFS)
KlickOwn is entered in the public register of contractually bound intermediaries kept on the Internet by the Federal Financial Supervisory Authority (BaFin). The NFS is a financial services institution and is subject to supervision by the Federal Financial Supervisory Authority (BaFin), Marie-Curie-Straße 24-28, 60439 Frankfurt am Main, which has granted it a licence in accordance with Section 32 of the German Banking Act (KWG) for investment advice and brokerage. All contractually bound intermediaries of the NFS are registered in Germany. The communication takes place in German language directly or over telephone, telefax or E-Mail and other electronic communication ways.
KlickOwn's brokerage activities are subject to statutory recording and storage obligations, in particular pursuant to Section 34 of the German Securities Trading Act (WpHG). As a contractually bound intermediary, KlickOwn is subject to the obligation to allow NFS Netfonds to inspect its business documents at any time, within the framework of the supervisory obligations and rights. In addition, NFS Netfonds has a comprehensive right to issue instructions in order to safeguard management and control options pursuant to section 25a (2) sentence 1 KWG and section 33 (2) WpHG. As a contractually bound intermediary, KlickOwn is obliged to tolerate audits and inspections of its business premises by the Federal Financial Supervisory Authority (BaFin) and by internal audits of the NFS Netfonds and to participate in these audits.
As a contractually bound intermediary, KlickOwn has entered into a separate contractual agreement with NFS Netfonds according to which KlickOwn acts as a vicarious agent for the brokerage of financial instruments (hereinafter referred to as "assumption of liability"). Under this agreement, NFS Netfonds is liable to investors for all losses incurred as a result of a breach of duty by the contractually bound intermediary KlickOwn, unless and to the extent that any limitations of liability arising from these GTC or from the brokerage agreement of NFS Netfonds conflict with these GTC. Other KlickOwn activities that do not include the brokerage of financial instruments do not include the assumption of liability by NFS Netfonds.
5. Registration
The KlickOwn brokerage platform enables its visitors to inform themselves about financial instruments of various issuers and to subscribe to these financial instruments as a registered user in compliance with the statutory provisions and the conditions of the respective offer. In order to continue using the platform, visitors of the platform must register as users by truthfully providing the requested personal data. Natural persons are only permitted to register if they are at least 18 years of age and have unlimited legal capacity. Legal entities may only be registered by their authorised representatives. Registration is mandatory with clear names and full address. Multiple registrations are not permitted. There is no legal claim to registration. KlickOwn may refuse registration at its own discretion without giving reasons and terminate the platform usage contract in accordance with the General Terms and Conditions. Investors must be resident in Germany and may only use the platform for their own account. The registration is highly personal and may not be transferred.
Within the framework of registration, KlickOwn may give users of the platform the opportunity to additionally choose a user name with which they can communicate visibly with other users of the platform on the platform. Users are then free to choose such a user name. The platform is not obliged to grant such a possibility. Already assigned user names cannot be assigned again. Only the user and not KlickOwn as operator of the platform is responsible for the statements made under a user name.
After registration on the platform, KlickOwn sends a confirmation email to the email address provided by the user. The registration is completed only after the confirmation of the activation link in the email. Registration with incorrect data is inadmissible and may lead to exclusion from the platform. KlickOwn reserves the right to delete registrations that have been created with one-time email addresses (so-called "disposable email addresses") as well as registrations that have not been activated within four months after creation without prior notice.
Users of the platform are obliged to keep the information provided during registration up to date during the duration of their registration. When registering, users of the platform shall choose a password for the registered user account. Users of the platform are obliged to ensure that this password is not made accessible to third parties. Each user of the Platform is responsible for all actions that are carried out via his account. Users of the platform are obliged to inform KlickOwn immediately of any third-party knowledge of their password and of any misuse of their account.
6. Use of the platform
KlickOwn makes the online brokerage platform available to the user free of charge. The user is solely and fully responsible for protecting his access data for the platform (in particular user name and password) from misuse and not making them accessible to third parties. Users of the platform are obliged to inform KlickOwn immediately of any third-party knowledge of their password and of any misuse of their account. KlickOwn reserves the right to temporarily or permanently exclude users from using the platform in case of suspicion of misuse of the platform by the user or by third parties.
The user also has the obligation to keep the data created from his user profile in a true and up-to-date state at all times and to protect access by third parties. Users understand and agree that if you do not receive an electronic message from KlickOwn because your e-mail address in the file is incorrect, obsolete, blocked by your service provider, or otherwise unable to receive electronic messages, you will lose the right to ignorance.
The communication channel between the user and KlickOwn consists of telephone, fax, postal letter, SMS, email and online contact forms, primarily in German and English, unless a special communication channel is prescribed or required in individual cases. For various contract-relevant circumstances (e.g. changes to access data and bank details, termination of contracts, inheritances, transfer of capital investments), only written communication in the form of a postal letter including a personal signature is permitted, as long as KlickOwn does not explicitly make other communication channels available via its platform.
The content of a declaration of intent must be free from doubt. This applies to all declarations of intent, in particular to the investor's orders to KlickOwn. In particular, KlickOwn must receive declarations of intent in due time and in an orderly manner within the scope of a change or recall of orders. KlickOwn assumes no responsibility for the proper, timely processing of declarations of intent which are not clear or not executed on time by the investor.
KlickOwn would like to point out that KlickOwn only carries out the appropriateness check prescribed by law (§ 16 para. 2 FinVermV), but no credit assessment of the real estate companies is carried out, and with regard to the information provided by the real estate companies on real estate projects and financing agreements, only a plausibility and conclusiveness check of the overall picture is carried out. In particular, KlickOwn does not check whether and to what extent the conclusion of contracts concerning the respective real estate project is economically sensible for the individual investor. Every investor makes this assessment independently and on his own responsibility. The user is expressly referred to the risk information contained in the respective offer documents for the offers of the real estate companies. The user should only declare acceptance if he has fully read and understood the risk information.
The real estate company alone is responsible for the accuracy, completeness and timeliness of the information made available on the real estate projects and financing agreements - even during the term of the financing agreements. This applies irrespective of the adequacy, plausibility and conclusiveness checks carried out by KlickOwn. The technical provision of information on the platform by KlickOwn and the possibility of concluding a contract via the platform do not constitute a recommendation or investment advice or legal or tax advice by KlickOwn. Users are strongly advised to seek advice from a lawyer or tax advisor before concluding any financing contracts, in particular with regard to economic, tax and legal matters.
Before accepting an offer to conclude financing agreements via the Platform, the information in the registration form must be updated. Any kind of comments, information and documents within the framework of the Platform or the associated blogs that violate applicable laws or are otherwise inappropriate, in particular racist, pornographic, offensive or immoral content, are not permitted. Violations of this provision may lead to a liability for damages on the part of the user of the platform, to the deletion of the articles concerned and/or to the immediate exclusion of the user of the platform from further use of the platform.
Insofar as KlickOwn offers links on the platform to third-party websites with third-party content, this third-party content was checked at the time the link was first created to determine whether it would give rise to civil or criminal liability. It cannot be ruled out that the contents may be changed afterwards by the respective providers. KlickOwn does not constantly check the contents of linked websites for changes that could give rise to new liability. Users of the platform are recommended to inform themselves about the valid terms and conditions and the privacy policy of the respective provider on the linked pages.
If there are indications of misuse of the platform, in particular if contracts are concluded via the platform without fulfilment of the payment obligations arising from the relevant financing contracts, KlickOwn reserves the right to exclude the user from using the platform with immediate effect. KlickOwn has the right to reduce, extend or otherwise change the services offered to users on the platform at any time if this becomes necessary for important reasons. An important reason exists in particular if the services violate a legal prohibition or cause considerable tax disadvantages for KlickOwn or the users of the platform or suffer from considerable legal deficiencies. However, KlickOwn is under no obligation to do so. Users of the platform shall be informed in good time by e-mail or on the homepage prior to any change in services.
7. Investment
Issuers can use the KlickOwn platform to inform interested investors about their investments. The issuer is responsible for the content and the accuracy / completeness of the information on the investments. This also applies in particular if and to the extent that KlickOwn provides information on investments which have been taken over from the respective presentations, information or documents of the issuers or offerors, in particular any income disclosed or promised by the issuers or offerors or information on the probable development of the financial instruments.
There is a time limit for the subscription to investments, which is individual for each financial instrument. Both the issuer and KlickOwn reserve the right to change the time limit at any time. The right also exists to terminate the offer prematurely, in particular if the offer is fully placed. In the event of an over-placement, the first come, first served procedure applies, whereby the completeness of the contract is decisive. In the event that a subscription amount exceeds the available volume of the financial instrument, the Issuer may reduce the subscription amount in accordance with the remaining available volume.
When making investment decisions, the full responsibility for obtaining information and checking these information lies with the user. The user is thus obliged to carry out an intensive review of all documents, risks and other circumstances relating to the financial instrument before subscribing to a financial instrument, so that a decision on the subscription of a capital investment is made solely and under his own responsibility. For the successful conclusion of a subscription to acquire a financial instrument, users are required to complete all electronic form pages completely and truthfully during the subscription process on the platform and click on the "Submit subscription offer now" button on the overview at the end of the subscription process. This triggers an offer for the respective financial instrument, but does not automatically lead to the conclusion of a contract.
Such a contract for the acquisition of the respective financial instrument is only concluded when (i.) the contract is complete, (ii.) the Issuer or a third party commissioned by the Issuer accepts the User's subscription declaration and (iii.) the acquisition is confirmed by KlickOwn by e-mail.
The Issuer or a third party commissioned by the Issuer reserves the right to accept the User's subscription in whole or in part with the exception that the offer conditions of the respective investment expressly stipulate otherwise.
In the event that KlickOwn is instructed to decide whether to accept or reject the offer, this will be announced in advance in the Offer Conditions of the respective investment. Within the framework of the subscription process on the platform, details of the offer, the subscription, the conclusion of the contract as well as the further acquisition conditions and restrictions will be shown and confirmed by the user within the framework of further contracts and contractual conditions.
8. Availability of the platform
KlickOwn strives for a comprehensive availability of the platform within the scope of what is technically and economically reasonable. For technical reasons, however, users of the platform may not be entitled to availability at any time. In particular, maintenance, security or capacity reasons as well as events outside KlickOwn's control may lead to the temporary suspension of the services offered and the availability of the platform. KlickOwn accepts no liability for technical difficulties experienced by users of the platform or by third parties. KlickOwn reserves the right to temporarily restrict access to the platform at any time if this is necessary with regard to capacity limits, the security of KlickOwn's systems, the implementation of technical measures or for other important reasons.
In case of maintenance or repair work, the user will be appropriately informed about the limited accessibility of the platform. A limitation of the accessibility and use of the platform can be triggered due to the individual technical equipment of the user and quality. The responsibility lies on the part of the user to create the technical framework conditions so that he can access the platform without restrictions. In order to use the platform, appropriate settings may also be required on the user's computer or mobile phone, e.g. allowing cookies to be stored. KlickOwn is not liable for damages and other consequences which may result from a limited availability or a failure of the availability of the platform.
9. Payment processing, contract term and termination
When purchasing a financial instrument, payments are made to the respective issuer. KlickOwn does not accept payments itself. Further details on payment processing are laid down in the contracts and contractual conditions, which are confirmed by the user during the subscription process.
The user contract for the platform is concluded between KlickOwn and the user for an indefinite contract period. The user contract can be terminated by the user and by KlickOwn at any time with a notice period of 15 days to the end of the month.
The right to extraordinary termination for important reasons remains unaffected for both parties. Each cancellation requires the text form. A termination by mail to [email protected] is also possible.
Financial instruments acquired by the investor, their management and settlement by KlickOwn as well as recording and documentation obligations of KlickOwn remain unaffected by a termination.
10. Costs, fees and commissions
The use of the platform is generally free of charge.
For the structuring and brokering of financial instruments, KlickOwn receives performance and turnover-related fees (brokerage commissions) from the respective issuers. In each individual case, the actual commissions will be appropriately displayed and announced on the KlickOwn website. Further details on the remuneration will be provided by KlickOwn upon request by the investor. The investor agrees that both KlickOwn and NFS Netfonds GmbH will retain the turnover-related fees paid to them as long as the acceptance of payments and/or remunerations takes place within a legally permissible framework.
The investor also agrees that the remuneration shall remain with KlickOwn and / or NFS Netfonds and, in deviation from the legal regulation of agency services pursuant to §§ 675, 667 BGB and § 384 HGB, shall not be surrendered to the investor. KlickOwn reserves the right to offer further services with a related remuneration and / or fee also in the future; this will be announced by KlickOwn in each individual case in an appropriate manner on the website https://klickown.com and may be specified in additional terms and conditions.
11. Data protection and secrecy
The collection, processing and use of personal data within the scope of registration is carried out in strict compliance with data protection regulations. Further information on this can be found in the data protection information under data protection, available at https://klickown.com/data-security-policy/.
Users of the platform and/or investors must treat the contents of the concluded financing agreements confidentially. Information on real estate companies and real estate projects may only be used for the purposes pursued with the platform and specified in these General Terms and Conditions.
KlickOwn makes the data provided by users / investors available to other visitors/users/investors only with the consent of the user of the platform and provided that the data does not violate legal regulations or the General Terms and Conditions. KlickOwn reserves the right to randomly check the data and/or information and documents of users of the Platform.
12. Liability
KlickOwn is liable to the user/investor without limitation for injury to life, limb or health and for damages resulting from intentional or grossly negligent breach of contractual obligations arising from the platform usage contract.
In addition, KlickOwn is liable for slight negligence only in the event of breach of material contractual obligations, i.e. the breach of obligations whose fulfillment is essential for the proper execution of the platform usage contract and on whose fulfillment the contracting party may regularly rely ("cardinal obligation"). In the event of a slightly negligent breach of a cardinal obligation, the liability of KlickOwn shall be limited to such typical damages and/or such typical extent of damages as were foreseeable at the time the contract was concluded.
The above limitations of liability shall also apply in the event of the fault of a vicarious agent of KlickOwn as well as for the personal liability of employees, representatives and organs of KlickOwn.
KlickOwn, NFS Netfonds or the Issuer shall not be liable to investors for any tax, economic or legal objectives pursued in connection with the investments, in particular not for the success of the respective financial instruments or compliance with forecasts made in connection with the respective financial instruments. The above exclusions and limitations of liability also apply to the benefit of the employees of KlickOwn and NFS Netonds and their respective agents and other third parties who assist KlickOwn and NFS Netfonds in the performance of the agreement.
There is a statute of limitations on possible claims of the investor against KlickOwn and NFS Netfonds, which are based on the fact that information in the provided information (e.g. on the platform or in documents) is incorrect and/or incomplete. The limitation period is one year - to the extent permitted by law - starting from the date on which the investor became aware of the inaccuracy or incompleteness, but no later than three years after the date on which the information in question was first published.
13. Risk indications and potential conflicts of interest
The investments brokered by KlickOwn are associated with economic, legal and tax risks. Even with conservative estimates and calculations, forecasts of future value developments may develop differently than expected and forecast. The acquisition of investments is associated with considerable risks and can lead to the partial or complete loss of the assets employed (partial loss risk or total loss risk). The suitability of such an investment is only given for those investors who can financially cope with a partial or complete loss of the invested capital in the event of a negative development. The capital investment is not suitable for investors who require short-term liquidity. In particular the investment is not suitable for the age precaution.
KlickOwn's brokerage activities may be associated with potential conflicts of interest between the interests of KlickOwn, the respective issuers and the investors; in particular, due to its commission-related remuneration, KlickOwn is interested in the successful brokerage of financial instruments with the highest possible placement volume. Furthermore, potential conflicts of interest may arise in particular in connection with the following circumstances:
14. Final provisions
KlickOwn reserves the right to change these terms and conditions at any time and without giving reasons with effect for the future. Registered users of the platform will receive the amended General Terms and Conditions by e-mail no later than four (4) weeks before they come into effect. KlickOwn will also point out any changes to these GTC on the platform itself. If registered users of the platform do not object to the validity of the amended GTC within four (4) weeks after receipt of the notification of the amendment, the amended GTC shall be deemed accepted by them. KlickOwn will separately inform registered users of the platform about the legal consequences of a silence in the notification about the change of these GTC.
These GTC and the legal relationship between KlickOwn and the users/investors are subject to the laws of the Federal Republic of Germany. The legal place of jurisdiction shall apply.
Should individual provisions of these GTC prove to be invalid or unenforceable, this shall not affect the validity of the remaining GTC. In such a case, the parties are obliged to replace the invalid or unenforceable provision with the legally permissible provision that achieves the purpose of the invalid or unenforceable provision, in particular what the parties have intended, with the closest possible approximation. The same shall apply if a gap should arise in the implementation of the GTC which needs to be filled.
SAMPLE REVOCATION FORM
(If you want to cancel the contract, please fill out this form and send it back.)
ADDRESS: Axel-Springer-Platz 3, 20355 Hamburg, Germany
email: [email protected]
I/we (*) hereby revoke the contract concluded by me/us (*) for the provision of the following
service: Use of the platform www.klickown.com.
Ordered on: Name of the consumer(s):
Address of the consumer(s):
Date, signature of the consumer(s) (only if communicated on paper):
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