Status: June 30, 2020
1. Field of application
1.1 DealCircle GmbH, Rothenbaumchaussee 205, 20149 Hamburg, Germany (“DealCircle”), operates the platform www.dealcircle.de as well as www.dealcircle.at, www.dealcircle.ch, www.dealcircle.co.uk and www.deal.circle (“Platform”), on which representatives or advisors of owners of companies or shares in companies (“M&A-Advisors”) and potential buyers or investors or their representatives or advisors (“Buyers”) (together “Users”) can access the information provided and contact each other. In addition, contact can be established directly by DealCircle without using the platform (“Private Matching”). The contact can be used by the Users to conclude company acquisitions, financing or investments (“Transaction”) with other Users outside the platform. The Transaction involves the payment of a sum of money or other monetary benefit in an ascertainable amount (“Transaction Volume”) by the potential buyer or investor to the owner of companies or shares of companies who is willing to sell.
1.2 These General Terms and Conditions (“GTC”) govern all contractual relationships between DealCircle and the User in connection with the use of the Platform and Private Matching.
1.3 General terms and conditions of the User shall not become part of the contract even if DealCircle does not expressly object to their inclusion.
1.4 The offer of DealCircle is not directed at consumers. Consumers are such persons who enter into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity.
2. Conclusion of contract
2.1 The User makes an offer to DealCircle to conclude a contract based on these GTC by filling in all mandatory fields of the registration form and submitting the form. Before sending the form the User has the opportunity to correct any input errors directly in the registration form. The offer can also be made in writing, verbally or by telephone. DealCircle immediately confirms receipt of the form. This confirmation is not yet an acceptance. Only after the existence of the users has been verified by certain criteria, e.g. by telephone inquiry, the contract is concluded by a separate explicit declaration of acceptance by DealCircle or by the actual activation of the account or the project. Also in the case of a verbal or telephonic offer a declaration of acceptance in text form by DealCircle. This can also take place in the form of establishing contact between the users.
2.2 A claim for registration or conclusion of a contract of the user against DealCircle does not exist.
3. Service description
3.1 Users can create a profile on the platform with data to be entered by them (general personal data (name, address, etc.), account data (e-mail address, password) as well as data on the professional activity of the User (“Profile”). As soon as the M&A-Advisor intends to establish contact in order to prepare a transaction, he can create a project with the essential basic conditions of the desired transaction (“Project”). On the basis of the transaction interest limited in the profile and project by the user, DealCircle suggests to the M&A-Advisor informatively the establishment of contact with potentially suitable users in the complementary role anonymously.
3.2 The user profiles (of the M&A-Advisor and of the potential buyers) and projects remain anonymous until both users have agreed to be contacted. In anonymous profiles and projects only such key data is visible to other users, which could be relevant for a potential transaction in the discretion of DealCircle, but not such data by which a user could be clearly identified. DealCircle reserves the right to disguise any profile and/or project content that would allow such identification in the anonymous version of the profile or project.
3.3 DealCircle only establishes an initial contact between the participating users. In particular, DealCircle does not become a party to any pre-contractual obligation or any possible subsequent transaction, nor does DealCircle assume any further advisor or other role in possible contractual negotiations between users. DealCircle does not act as an agent or messenger with respect to the issuance, transmission or receipt of declarations of intent between users.
3.4 In addition to the mediation fee under clause 4, DealCircle shall receive a success fee from the Purchaser in accordance with clause 5 for establishing the initial contact between Users in the event that a transaction is concluded between these Users.
4. Commission for mediation
4.1 The registration with DealCircle is free of charge for the users.
5. Success fee for the buyer
5.1 In the event of a successfully completed transaction where the initial contact in relation to this transaction was made by DealCircle as a result of contact establishment by DealCircle, the Purchaser shall pay to DealCircle a success fee in the amount of 2% of the transaction volume (Enterprise Value), but at least 25,000 Euro (net). The transaction volume is defined as the cash inflow to the shareholder of the company(ies) sold, which is the consideration for the transfer of the object of purchase to the buyer, irrespective of whether this includes, for example, the purchase of the shares, the repayment of shareholder loans or of deposit accounts or the purchase of assets such as machinery or real estate, plus the pro rata net financial liabilities existing on the acquisition date as well as any mandatory capital increases or contributions in kind by the buyer. The transaction volume also includes any earn-out payment. The Buyer is entitled to offset any subsequent reductions in the transaction volume against the earn-out payment, but not against the Enterprise Value at the time of the transfer of the participation. The success fee is – if required by law – plus the applicable value added tax. For clarification purposes, the Buyer also owes the success fee if a company affiliated with it pursuant to Section 15 AktG, a company in which it holds an equity interest or an investor or co-investor it represents acts as buyer.
5.2 DealCircle reserves the right to change the success fee with effect for the future. The change is only valid for projects that are created after the change has become effective. For already created projects, even if they lead to a transaction only later, the success fee always applies in the version at the time of the creation of the project.
5.3 The Buyer’s success fee is due at the time of the transfer of the Company’s shares or material assets from the Seller to the Buyer (“Transfer of Participation”). In any other case of financing, the success fee shall become due upon conclusion of the financing agreement. Any subsequent reduction of the purchase price shall not affect DealCircle’s claim for remuneration.
5.4 The date of the transfer of the participation is
- in the case of the acquisition of shares, the date of execution of the share transfer agreement,
- in the case of the acquisition of GmbH shares, the date of execution of the share transfer agreement,
- for the purchase of assets, the date of the first payment by the purchaser for the assets; and
- in all other cases, the date of the first payments under the transaction for the acquisition of the interest in the Company.
5.5 Unless otherwise agreed in writing between DealCircle and the User, the success fee is payable within 15 days from the due date.
5.6 The parties agree that the completion of the transaction constitutes an event within the meaning of § 286 (2) No. 2 BGB (German Civil Code) and that, therefore, in the event of non-performance, Users shall be in default of payment even without a reminder, with the expiry of 15 days after the due date.
6. Obligation to report and right to information
6.1 In the event that one or more transactions within the meaning of clause 1.1 occur between two Users within 36 months after DealCircle has established the initial contact, the User shall report the transaction(s) to DealCircle within 7 days after the transfer of participation within the meaning of clause 5.4 (“Final Notice”). The notification of completion shall be made in writing to DealCircle GmbH or by email to firstname.lastname@example.org.
6.2 The Final Notice shall contain at least the following information:
1. report by sales consultant:
a. Information about the transaction with parties, time and object of the transaction
b. Information on the transaction volume or the purchase price according to 5.1
2. notification by buyer:
a. Information about the transaction with parties, time and transaction object and
b. Information about the parameters relevant for the calculation of DealCircle’s remuneration by the Purchaser, in particular and at least the transaction volume or purchase price according to 5.1
6.3 DealCircle shall acknowledge receipt of the notifications within 5 working days.
6.4 Every user (whether in the role of buyer or seller) is obliged to comply with a request for information from DealCircle about any transactions within 14 days. DealCircle shall name the affected users in each request for information. For the content of the information clause 6.2 applies accordingly. Within 6 months DealCircle may not repeat a request for information which the user has fully complied with in accordance with the contract.
7. Invoice from DealCircle
7.1 Following a completion message (clause 6.2 et seq.) or information (clause 6.4) about the transaction, the Buyer will receive an invoice from DealCircle by email.
7.2 DealCircle points out that the invoice amount is due for payment even without or before the invoice is issued.
8. Confidentiality, disclosure of information
8.1 The User is prohibited to pass on to third parties any information and data that is available on the Platform after registration and verification and that has been specifically prepared by DealCircle and is exclusively accessible to registered and verified Users or otherwise made available to the User by DealCircle.
8.2 Third parties are in particular also companies directly or indirectly affiliated with the User, companies within the meaning of § 15 of the German Stock Corporation Act (Aktiengesetz) or related parties within the meaning of § 138 of the German Insolvency Code (Insolvenzordnung) as well as companies in which the User directly or indirectly (e.g. on the basis of a fiduciary agreement) holds an interest. Third parties are not employees, freelancers, service providers, representatives and vicarious agents of the User and this list is exhaustive.
9. Further obligations of the user; release
9.1 The User is prohibited from all actions that could endanger the functionality or the integrity of the platform. In particular, the platform may not be used for spamming, unauthorized manipulation of data and/or cyber attacks.
9.2 The user may not post data and/or other content in his profile and his projects that violate applicable legal regulations or the rights of third parties (in particular copyrights and personal rights).
9.3 Furthermore, the user must truthfully enter all information regarding the company profile and projects to be initiated.
9.4 DealCircle reserves the right to delete any data of the User which, based on objective facts, are suspected of violating this clause 9.
9.5 The User shall indemnify DealCircle against all damages, claims of third parties, expenses and costs (including reasonable attorney’s fees not limited to the statutory fees) incurred by DealCircle due to any violation of this clause 9 by the User. Further contractual and legal rights and claims of DealCircle remain unaffected. DealCircle is not obliged to check the data or content posted by the User for a violation of this clause 9.
10.1 The company, profile and project data displayed on the platform are provided exclusively by the respective users. DealCircle is not liable for the correctness and completeness of the company and project data displayed on the platform. In particular, DealCircle does not warrant the accuracy of the data and is not liable for any transaction between the Users after the initial contact has been established. DealCircle is only liable for the proper provision of information about companies and projects, and only conclusively as provided in this clause 10.
10.2 DealCircle shall be liable without limitation for intent and gross negligence as well as for damages resulting from injury to life, body or health, for breach of a – expressly designated as such – guarantee, as well as under the Product Liability Act.
10.3 In cases of slight negligence (with the exception of the cases described in clause 10.2) DealCircle shall only be liable in case of breach of a material contractual obligation. A material contractual obligation in the sense of this clause 10.3 is an obligation the fulfilment of which is essential for the execution of the contract and on the fulfilment of which the User may therefore regularly rely.
10.4 The liability according to clause 10.3 is limited to the typical and foreseeable damage at the time of conclusion of the contract.
10.5 The limitations of liability shall apply accordingly in favour of the legal representatives, employees, agents, auxiliary persons and vicarious agents of DealCircle.
11. Blocking of a user account
11.1 DealCircle reserves the right to temporarily or permanently block user accounts in the event of serious or repeated breaches of these Terms and Conditions. Further legal and contractual rights and claims of DealCircle remain unaffected.
11.2 A serious violation of the GTC within the meaning of Section 11.1 shall be deemed to exist in particular if there are concrete indications that a user
- uses the platform without having an interest in a transaction within the meaning of Section 3.1
- attempts to directly or indirectly circumvent the obligation to pay the success fee pursuant to Section 5.1
- fails to comply with the obligation to notify in accordance with item 6,
- does not meet the payment obligation according to clauses 4 and 5, or
- violates obligations under Sections 8.1 or 9.
12. Availability of the platform
12.1 The User acknowledges that DealCircle cannot guarantee permanent availability of the Platform. There is no claim to a permanent availability.
12.2 DealCircle shall endeavour to realize a smooth and continuous availability of the platform under consideration of the technical possibilities.
13. Online dispute resolution
The EU Commission provides an online platform for online dispute resolution (OS platform). It can be accessed via the link http://ec.europa.eu/consumers/odr/. DealCircle is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board.
14. Final provisions
14.1 DealCircle is entitled to change these terms and conditions at any time. The user will be informed about the change at least four weeks before the intended change of the GTC via the e-mail address stored in the user profile. If the user does not object to the change of the GTC within four weeks after receipt of the notification of the change, the new GTC shall be deemed accepted by the user. In the notification of change DealCircle will especially point out this period and the importance of silence. This amendment mechanism does not apply to changes in the main performance obligations of the parties.
14.2 The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
14.3 The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hamburg, Germany, provided that the parties to the contract are merchants or the user has no general place of jurisdiction in Germany or in another EU member state or has moved his permanent residence abroad after these terms and conditions of use have come into effect or his place of residence or usual abode is not known at the time when legal action is filed.
14.4 Should any provisions of these Terms and Conditions be invalid, the remaining provisions shall remain in effect. The parties shall replace the invalid provision by a provision which comes as close as possible to the economic intention of the parties. This shall apply accordingly in the event of loopholes in the provisions.