Terms and Conditions
A. 1. GENERAL
1.1 These are the terms and conditions of Asset Profiler GmbH ("AP"), Großer Burstah 25, 20457 Hamburg, Germany. No differing terms and conditions of the user shall apply, even when such are not expressly opposed by AP.
1.2 AP offers commercial real estate providers (hereafter "sellers") and investors an anonymous internet platform for real estate acquisitions and sales. Based on search criteria and vendor-supplied asset data as well as that specified by the investor, AP executes an automated matching and transmits the results anonymously to sellers and investors. The seller subsequently has the opportunity to request selected investors, via AP, to submit an identified offer. Furthermore, investors are able to search the inventory of anonymous offers on AP for further assets in order to obtain an overview of the market. Investors and sellers are hereafter referred to as the platform "users".
1.3 The services rendered by AP shall only be available to commercial users, whose company and ownership credentials, or capacity as professional investors, respectively, have been carefully reviewed.
1.4 AP provides its services solely on the basis of a User Agreement individually contracted between the user and AP and subject to these General Terms and Conditions in their currently effective version. Contradictory general terms and conditions or any other specific conditions of the user shall only apply upon AP's explicit written approval. The same applies to the waiver of written agreements.
1.5 The user remains the owner of all information supplied to AP. AP provides only the technical prerequisites for comparison of the information of various users and performs the matching accordingly.
B. 2. DESCRIPTION AND USE OF THE SERVICE
2.1 The following steps comprise the services provided by AP:
- The investor enters one or more investment profiles with predefined search criteria into the interface mask of the AP platform and releases the data for matching. Investor profiles are visible only to sellers whose offered assets sufficiently correspond to the respective investor profile, and not to any other platform users. Entering the investor profile does not constitute a search order or any offer to the respective seller, or completion of any brokerage contract.
- Should an asset correspond to one or more investor profiles during the AP matching process, the seller shall receive a Matching Summary containing the specific names of any such potential investors as well as a detailed analysis of the respective conformities and deviations.
- Should a match take place, the investor shall receive an anonymous notification regarding the asset and seller. He can use this opportunity to request such anonymous seller to forward specific data on the asset and seller via the platform.
- On this basis, the seller can decide whether he wishes to offer the matched asset specifically to one or more of these investors. Only then is any such data revealed to the selected investor/investors.
- After triggering the match to an asset or to an investor profile, AP will automatically adjust or synchronise any altered or new data relating to the investor profile or asset at regular intervals and naturally inform the corresponding parties of the new results.
- Any potential sales agreement between seller and investor shall be concluded directly between such seller and investor.
- The seller always decides whether he shall reveal the asset and seller data to the investor. Up to that point, all such data remains invisible to other platform users.
2.2 AP shall only be responsible for such rendered services as are set forth in this agreement.
2.3 Use of the AP service requires prior registration. AP reserves the right to verify the user and, where appropriate, decline registration without further notice.
2.4 The user agrees to provide complete and correct data as requested at registration and to make available requested copies of the original documents for verification. In the event of any change to user data, the user is obliged to immediately update such information.
2.5 The user must specify at registration whether he is planning to use the AP service as a seller or as an investor. Multiple AP accounts, e.g. as both seller and investor, are permissible.
2.6 Once AP has received all required information and documents from the user, AP will review such data and, assuming the assessment is positive, send the user a formal offer in the form of an individual User Agreement. Upon acceptance of offer and return of the signed agreement, AP shall activate the platform for the user.
2.7 Use of the platform may be temporarily limited or interrupted for technical reasons.
2.8 The client can also choose to use AP's optional, paid data-entry service. Whereby the AP team enters the data provided by the client regarding assets and/or investor profiles onto the AP platform, and transfers it into the client's account as a "Draft". The release of assets and investor profiles for matching is determined by the client. Although AP warrants that the entry of all such data is conducted to the best of its knowledge and belief, AP shall assume no liability for the accuracy and completeness of any such data. Prices and payment terms for this service shall be individually agreed between AP and the respective client.
C. 3. PRICES & TERMS OF PAYMENT
3.1 Prices and payment terms for use of the AP service are part of the individual User Agreement between AP and the user.
3.2 Invoices shall be submitted upon execution of the individual user contract and notification to user of his personal login data. The user fee is payable in advance for the entire contractual period and due for payment without deductions within 10 days upon receipt of invoice.
3.3 Upon providing prior notice, AP is authorized to increase prices by no more than 10% p.a. at any time during the contractual term.
4. DURATION OF CONTRACT AND TERMINATION
4.1 The contractual term is defined in the individual User Agreement. It will be automatically extended by the originally agreed duration should the user not provide written notice of termination within 3 months prior to expiry of the contractual period, or 3 months prior to the contract extension period. The user's right of termination for good cause shall hereby remain unaffected.
4.2 AP is moreover permitted, upon giving prior notice, or fruitless expiry of a reasonable extension of time, to immediately terminate the contract in the following cases:
- The user violates the terms set forth in the individual User Agreement or in these general Terms and Conditions.
- The user violates the rights of other users or third parties.
- The user has entered inappropriate or incorrect data on the platform.
- The user is in arrears by two or more monthly payments.
Excluded from these grounds for termination is the right of extraordinary termination for good cause.
4.3 In the case of orderly termination without notice or extraordinary termination for good cause, AP will immediately delete the user's account or accounts. In the event of termination without notice or extraordinary termination for good cause, AP is likewise entitled to block the user's renewed access to the platform.
5. DATA STORAGE AND CONFIDENTIALITY
5.2 AP hereby warrants to maintain confidentiality of all confidential documents and information that it shall receive in connection with the use of the platform by the user. Confidential Information shall mean all information provided by the user to AP, except when such information has, prior to input, been in the public domain or provided to AP without a confidentiality obligation. AP will use confidential information and documents solely in the context of providing services falling within these Terms and Conditions. Disclosure to third parties is permitted only by the user himself when using the service or upon user's prior written consent. This is without prejudice to the obligation of disclosure to such persons themselves obligated to professional secrecy or in accordance with legal requirements. The confidentiality obligation also continues after termination or expiry of contract.
6. LIABILITY AND WARRANTY
6.1 AP undertakes no verification of the completeness and correctness of data provided by users, and the transmitting users alone carry this responsibility. In particular AP does not check whether the user can fulfil contractual commitments made to any other user. AP is not liable for any legal or economic disadvantages resulting from sales contracts technically mediated through the AP platform, and expressly excludes any liability or guarantee in this respect. The information and documents provided to AP may not encompass any third party rights unless such third party has consented to the user's respective disclosure to AP. Should a third party make a claim against AP due to an infringement of such rights as a result of user documents submitted to AP for inclusion on the platform, the user hereby warrants that AP will not be affected by such third party claims and will reimburse AP for any legal costs incurred from any such damages claim against AP.
6.2 In the event of a service defect or deficiency, AP is initially only required to rectify such defect. Should such defect or deficiency not be remedied after a second attempt, the user may reduce the price or withdraw from the contract. If AP has not acted maliciously, intentionally or with gross negligence, or breached its fundamental obligations, all other rights of the user from the deficient performance are excluded. The user must notify AP of all and any defects in writing. All warranty claims shall expire 12 months after the complete provision of service in as far as AP has not maliciously concealed any such defect or deficiency, or wilfully caused it. In the case of force majeure, AP is not required to provide or replace the defect. Force majeure events are unforeseeable events for which neither contractual party shall be held responsible.
6.3 In such case where AP has negligently violated an obligation in the contractual relationship with the user, yet no key contractual obligation has been infringed, AP's liability shall be limited to an amount representing one year's revenue generated by AP from the user, while AP's liability shall be unlimited in the case of intent and gross negligence. Should a slight negligent breach of a material contractual obligation occur, AP's liability is limited to the typical contractually foreseeable damage. Personal liability on behalf of AP agents or staff is hereby excluded, except in the case of their wilful misconduct or gross negligence. AP shall be held directly liable for any damages, including loss of profits, solely in the event that such are caused by wilful or gross negligence. The aforesaid limitations of liability and limitation provisions shall be replaced by statutory law in the event of prejudice to life, body, health or liberty.
7. PERFORMANCE, JURISDICTION, APPLICABLE LAW
7.1 Place of performance for all disputes arising from or in connection with the individual User Agreement or these Terms and Conditions shall be Hamburg.
7.2 Sole place of jurisdiction for all disputes arising from and in connection with the individual User Agreement or these Terms and Conditions is Hamburg. However, AP is entitled to pursue legal action against the user within any other legal jurisdiction.
7.3 German law shall apply for the purposes of the individual User Agreement and all claims arising therefrom or in connection with the individual User Agreement. The application of the UN Sales Convention (CISG) and conflict of laws pursuant to private international law are hereby excluded.
D. 8. SEVERABILITY CLAUSE
Should any individual provision(s) of the individual User Agreement or of these Terms and Conditions be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions as a whole.