General; subject of regulation
1.1. CAPTIQ GmbH (Neue Mainzer Str. 66 - 68, c/o Mindspace Eurotheum, 60311 Frankfurt am Main, Germany) ('CAPTIQ', 'we', 'us') operates an online loan brokerage platform (located, for example, at www.captiq.com, this website also the 'Website') that enables users who are members of regulated professions (e.g., lawyers, doctors, etc.) to enter into loan agreements with a bank (the 'Platform') in accordance with these General Terms and Conditions ('GTC').
1.2. These GTC apply to the use of the brokerage services offered by CAPTIQ in this context concerning the conclusion of loan agreements by users ('User', 'you') or to the use of the Platform.
1.3. CAPTIQ does not conclude (via the Platform) any loan agreements with Users itself, but only mediates corresponding loan agreements between Users and a bank (a list of banks that are currently eligible as lenders with respect to such mediation services of CAPTIQ can be found under the following link: www.captiq.com/finanzierungspartner. With the platform, CAPTIQ offers the possibility for a user and the bank to communicate with each other and with respect to a loan contract or its initiation and execution, to make statements and to exchange information.
1.4. CAPTIQ does not owe the user any brokerage success, i.e. the user has no claim against CAPTIQ that CAPTIQ's brokerage services with respect to the loan requested by the user will result in the conclusion of a loan agreement between the user and the bank. CAPTIQ has no influence on the terms of a loan agreement between the bank and the user. With regard to the loan agreements concluded between the user and the respective bank via the platform, only the contractual terms agreed between the user and the bank shall apply.
2. Registration to the platform; conclusion of contract
2.1. In order to use the platform, users must register and accept these GTC. This can be done in different ways, which we describe in more detail under a. and b. below:
a. A User may register himself/herself on the Website to use the Platform. In this context, certain data of the User (esp. title, surname, first name, address, e-mail address, company name, legal form, accounting form, company address) as well as a user name and a password will be requested from the User (in accordance with the password guidelines applicable on the Platform).
If, at the end of the registration process on the Website, the user accepts these GTC and clicks the 'Register' button, the user makes an offer to conclude a contract regarding the use of the Platform or regarding the use of any brokerage services provided by CAPTIQ in the future via or in connection with the Platform in accordance with these GTC (the 'Contract'). CAPTIQ shall promptly confirm receipt of this offer to conclude the Agreement to the User by email (the 'Confirmation Email'). The contract shall be concluded upon receipt of the confirmation e-mail.
b. If the user works with a financial advisor or loan broker (hereinafter also the 'advisor(s)'), the advisor(s) may also register on the platform for the user in accordance with the following provisions and prepare the conclusion of the contract between the user and CAPTIQ regarding the contract. Not all consultants have the possibility to carry out such a registration on the platform, as this requires a special technical interface connection to the platform or a corresponding web access on the part of the consultant. Users should contact their consultants and ask whether the respective consultant can use such a connection to the platform.
To register, an authorized consultant must transmit data on the user (in particular title, surname, first name, address, e-mail address, company name, legal form, accounting form, company address) to CAPTIQ via a technical interface to the platform or a special web access to the platform. In this context, CAPTIQ will send an e-mail to the e-mail address of the relevant user provided by the consultant (offer to conclude the contract on the part of CAPTIQ), in which the user is requested, among other things, to accept these GCS - (usually) by clicking a button in the e-mail (in addition, the user must also confirm in this context for successful registration that his consultant may take certain actions on his behalf in connection with the loan (application) process or that he may receive certain information in this connection from CAPTIQ). By accepting the GTC by the respective User (i.e., as a rule, by clicking the aforementioned button), the User accepts CAPTIQ's offer to conclude the Agreement. CAPTIQ shall confirm the corresponding conclusion of the user's registration to the user promptly by e-mail. The Consultant shall also be informed by CAPTIQ in a suitable form of the corresponding conclusion of the contract promptly after the conclusion of the contract.
2.2. Registration, setting up and activation of the CAPTIQ Account and use of the platform are generally free of charge for users. However, the User shall have a payment obligation in the form of a brokerage fee in connection with the use of the platform if the User concludes a loan agreement with a bank via or in connection with the platform (see section 5 below regarding the brokerage fee payable in the event of the successful brokerage of a loan agreement; see also section 4 below regarding the conclusion of the loan agreement).
2.3. The user is obliged to provide the data and information requested during registration for the platform completely and correctly or, in the case of registration by a consultant on behalf of the user, to provide the consultant with correspondingly complete and correct data for the purposes of registration.
2.4. The user is obligated to correct or update the data and information provided during registration in his CAPTIQ account in a timely manner if they change (e.g., due to relocation, change of e-mail address) or, in the case of registration by a consultant on behalf of the user, to notify the consultant of changes accordingly and to ensure that the consultant notifies CAPTIQ of these changes.
2.5. The CAPTIQ Account may only be used by the registered user or by a consultant authorized by the user (with respect to a consultant, this shall only apply if the consultant has access to an interface or web connection to the platform as described above; see section 2.1.b. above).
2.6. The user is obliged to keep his password for the CAPTIQ account safe and to carefully secure his access to his CAPTIQ account. The user shall ensure that no unauthorized third party obtains knowledge of his password. The user is obliged to keep his password secret and to change it immediately if he suspects that unauthorized third parties have gained knowledge of it. The user is obliged to inform CAPTIQ immediately if there are indications that his CAPTIQ account has been misused by third parties. If further misuse is to be feared, the user must notify CAPTIQ that his CAPTIQ account is to be blocked ('blocking notification'): either in writing to CAPTIQ GmbH, Neue Mainzer Str. 66 - 68, c/o Mindspace Eurotheum, 60311 Frankfurt am Main) or by e-mail to firstname.lastname@example.org. The user shall be liable to CAPTIQ for any damage caused by a culpable breach of the aforementioned obligations by the user. The user shall be liable for all activities carried out using his CAPTIQ account, including abusive activities by third parties, unless he is not responsible for the abuse or has not breached his duty of care.
2.7. The User is prohibited from using the platform in an unlawful manner, in breach of contract or in an abusive manner, e.g. by impairing or disrupting the functioning of the platform (breach of system integrity), by transferring the CAPTIQ Account to third parties or by providing access to the CAPTIQ Account to unauthorized third parties.
3.1. The User and, if applicable, an advisor of the User may use the platform to the extent intended within the framework of the provisions of these GTC in order to initiate and execute the conclusion of a loan agreement between the User and the Bank.
3.2. CAPTIQ may make the use of the Platform or individual functions and services thereof subject to conditions, such as the verification of registration data or creditworthiness and payment history. In particular, CAPTIQ shall be entitled to restrict the use of the Platform or to suspend its brokerage services if (i) a credit check carried out on the User shows that the User - from CAPTIQ's point of view - does not meet the creditworthiness criteria for the conclusion of the desired loan, and/or (ii) the User breaches contractual obligations under the Agreement (e.g. by providing incorrect information regarding the User). In such a case, CAPTIQ shall inform the User in an appropriate manner of the relevant restrictions and suspensions.
Notwithstanding the foregoing, CAPTIQ shall provide users whose creditworthiness is not sufficient for the loan requested by the user - from CAPTIQ's point of view - if necessary with information on other companies with which such a user may have a better chance of obtaining a loan or having a loan arranged for him (but the user shall have no right to receive such information from CAPTIQ).
3.3. Offers and content published on the platform as well as articles that do not originate from CAPTIQ are not checked for their legality, correctness and completeness, unless there is a legal obligation to do so.
3.4. CAPTIQ may provide the User and the Bank with the relevant data, information and, if applicable, notifications concerning the initiation, conclusion and execution of a loan agreement requested by the User or the User's advisor to the extent necessary by means of the Platform.
If a consultant is engaged on the part of the User (cf. Section 2.1.b. above), CAPTIQ may also provide the consultant with corresponding data, information and notifications to the aforementioned extent.
3.5. In the event that a consultant is engaged on the part of the User (cf. Section 2.1.b. above), the User undertakes to notify CAPTIQ without undue delay if the respective consulting relationship between the User and the consultant or the corresponding consulting agreement has ended or if the User no longer wishes to receive any further transmission of corresponding data, information and notifications from CAPTIQ to the consultant.
3.6. By making the Platform (and the corresponding functions and services) available, CAPTIQ creates the opportunity for the User to conclude a loan agreement (cf. Section 4.2 below on the term 'conclusion of a loan agreement') between the Bank and the User in the first place. By making the Platform (and the corresponding functions and services) available to the User and by CAPTIQ's activities in connection therewith in relation to (the initiation of) the corresponding loan agreement(s) (see, e.g., Section 4.1. below), CAPTIQ provides the User with an intermediary service (to be remunerated by the User). Therefore, upon conclusion of the loan agreement, the user owes CAPTIQ the payment of a brokerage fee, which is described in more detail in Section 5 below.
4. Conclusion of contract between user and bank
4.1. To the extent that any preliminary checks carried out by CAPTIQ with respect to the User (e.g. with respect to the creditworthiness of the User) show that the User - in the opinion of CAPTIQ - is in principle eligible for the loan requested by the User, CAPTIQ shall transmit to the User a draft loan agreement of the Bank by means of a DocuSign Link. This transmission of the draft loan agreement does not yet constitute the application for the conclusion of the loan agreement on the part of the bank.
Rather, by signing the Loan Agreement by means of electronic signing by the DocuSign tool and transmitting this agreement by means of DocuSign, the User makes an offer to the Bank to conclude the Loan Agreement, whereby CAPTIQ acts as a receiving messenger for the Bank within the scope of this process and forwards the relevant contractual documents to the Bank - after carrying out any further preliminary checks by CAPTIQ for the Bank regarding the documents and information transmitted; the User's offer to conclude the Loan Agreement shall become effective upon the Bank's receipt of the relevant Contract Documents after they have been forwarded by CAPTIQ. If the aforementioned preliminary checks by CAPTIQ regarding the documents and information submitted by the User lead to a negative result, CAPTIQ shall not forward the relevant Contract Documents to the Bank and shall inform the User accordingly.
The User has no right to claim that the Bank agrees to such a loan request of the User and subsequently concludes a corresponding loan agreement with the User (this is solely at the discretion of the Bank).
4.2. The loan agreement does not require a separate declaration of acceptance by the Bank. The loan agreement is concluded impliedly by disbursement of the loan to the user (this point in time also the 'conclusion of the loan agreement').
4.3. The Bank is free in each case not to accept loan requests from the User or offers from the User to conclude a loan agreement concerning the User. The decision to do so shall be at the Bank's sole discretion. If the Bank does not accept a User's offer to conclude a contract, CAPTIQ shall inform the User thereof.
4.4. For clarification: CAPTIQ is not a party to the loan agreement. A loan agreement is - if at all - only ever concluded between the user and the bank.
5. Agency fee
5.1. Under the Loan Agreement between the User and the Bank, the User shall take out a loan with the Bank which shall include, on the one hand, the actual loan amount requested by the User (the 'Borrower Disbursement Amount' or the 'Disbursement Amount') and, on the other hand, an additional percentage intermediation fee for CAPTIQ (the 'Intermediation Fee'), i.e., the User shall also finance the Intermediation Fee payable to CAPTIQ with the loan.
5.2. The user owes CAPTIQ the payment of a brokerage fee in accordance with the following provisions.
a. The brokerage fee is 3% of the disbursement amount.
b. The claim for payment of the brokerage fee arises only at the time of the conclusion of the loan agreement.
c. The arrangement fee is due immediately upon the conclusion of the loan agreement (the 'Due Date').
d. The User shall agree with the Bank under the Loan Agreement and irrevocably instruct the Bank that the Bank shall pay the Placement Fee directly to CAPTIQ on the due date.
e. For the avoidance of doubt, termination of the Agreement (irrespective of the legal reason for termination) shall not affect any obligation already incurred by the User to pay the brokerage fee to CAPTIQ (i.e. such obligation shall not be affected by termination of the Agreement).
f. For the avoidance of doubt, the obligation to pay the brokerage fee to CAPTIQ exists even if the loan agreement is not concluded until after the termination of the agreement (irrespective of the legal reason for the termination), as long as the loan agreement is concluded on the basis of and/or as a result of and/or in connection with a brokerage service provided by CAPTIQ (see Section 3.6 above regarding brokerage services).
6. Blocking the CAPTIQ account
6.1. CAPTIQ shall block a User's CAPTIQ Account at the User's instigation, in particular in the event of a blocking notice.
6.2. CAPTIQ shall also be entitled to temporarily block a User's CAPTIQ Account if
- there is an extraordinary reason for termination of the contract for cause (cf. Section 7.3. below); and / or
- an unauthorized, illegal or improper use of the CAPTIQ Account takes place or threatens to take place, e.g. by impairing or disrupting the functioning of the Platform (breach of system integrity), by transferring the CAPTIQ Account to third parties or by providing access to the CAPTIQ Account to unauthorized third parties; and / or
- there is sufficient suspicion that the User is involved in fraudulent and/or illegal activities concerning the Platform and that blocking appears necessary - from CAPTIQ's point of view - to protect the interests of CAPTIQ and/or the respective bank; and/or
- false information has been provided in the course of registration or CAPTIQ has reasonable suspicion that this is the case.
In the case of particularly serious violations, the blocking is also possible without prior information of the user. CAPTIQ shall inform the user of the lifting of the block on the user's CAPTIQ account in an appropriate manner.
7. Term of the contract; termination; consequences of termination of the contract
7.1. The contractual relationship concerning the Agreement between the User and CAPTIQ shall commence upon the conclusion of the Agreement (see Section 2.1. above) and shall apply for an indefinite period of time.
7.2. The User may terminate the agreement at any time and without notice in text form by e-mail to email@example.com or in writing. CAPTIQ shall be entitled to terminate the contract at any time with two (2) months' notice to the end of the month in writing or in text form. In addition, ordinary termination of the Agreement by either party shall be excluded.
7.3. The right to extraordinary termination of the contract without notice for good cause shall remain unaffected. CAPTIQ shall in particular be entitled to terminate the contract extraordinarily, without notice, for good cause if
- the user has provided false information in relation to his/her loan request; and/or
- the user is involved in fraudulent and / or illegal activities concerning the platform and a blocking appears necessary to protect the interests of CAPTIQ and/or the respective bank - from the point of view of CAPTIQ; and / or
- unauthorized, unlawful or improper use of the CAPTIQ Account takes place or threatens to take place, e.g. by impairing or disrupting the functioning of the platform (breach of system integrity), by transferring the CAPTIQ Account to third parties or by providing access to the CAPTIQ Account to unauthorized third parties.
Termination in accordance with clause 7.3 must be made in writing or in text form (in the case of termination by the User in text form by e-mail to firstname.lastname@example.org).
7.4. Upon termination of the agreement, CAPTIQ shall be entitled to permanently block or delete the User's CAPTIQ Account - subject to the provision in the following sentence.
In the event of an extraordinary termination of the Agreement without notice within the meaning of Section 7.3, CAPTIQ shall take into account the legitimate interests of the User with regard to the effects of an immediate blocking or deletion and, to the extent that an immediate blocking or deletion is unreasonable for the User, grant the User a transitional period, which shall generally not exceed 14 days (the 'Transitional Period'). However, the granting of a transitional period shall not be necessary, in particular, if the User has breached the contractual agreements under the Contract in such a way that the granting of a transitional period would be unreasonable for CAPTIQ.
7.5. The rights and obligations arising from the agreements between the User and the Bank shall remain unaffected by any termination of the Agreement. Termination of the Loan Agreement between the User and the Bank (for whatever legal reason) shall not affect the Agreement (in particular, the User's obligation to pay remuneration pursuant to Section 5 shall remain in full force and effect in the event of termination of the Loan Agreement (for whatever legal reason)).
8. Intellectual property and permitted use of the platform
8.1. All elements of the Platform and/or the Website, i.e. data and materials including images, graphics, illustrations, designs, icons, photographs, text and other illustrations (hereinafter in this Section 8. also the 'Content') are owned by CAPTIQ or by licensors and are protected by copyright, trademark law and/or other intellectual property rights.
8.2. The user may use the content, for example save or print it, but only to the extent and to the extent that this is directly related to the intended use of the platform.
8.3. Any other use and/or reproduction of the Content, without the prior express consent of CAPTIQ, is a violation of applicable law and is prohibited under these GTC.
8.4. The use of automated systems or software to extract data from the Platform, in particular for commercial purposes, is prohibited.
9. Availability / System failure
9.1. CAPTIQ endeavors to offer unrestricted availability of the Platform to the extent technically feasible and economically reasonable. However, CAPTIQ does not assume any warranty for this. Use may be temporarily restricted if this is necessary with regard to capacity limits, the security or integrity of the servers or to implement technical measures, and this serves the proper or improved provision of the services. In such cases, CAPTIQ will take into account the legitimate interests of the User (such as by providing advance information).
9.2. If an unforeseen system failure impedes the use of the platform, the conclusion of contracts or other functions of the platform, the users will be informed in a suitable and appropriate manner.
10.1. We are liable to the users in each case in accordance with the statutory provisions in the following cases for reimbursement of expenses and damages (hereinafter in section 10. together also 'damages'): In the event of liability under the Product Liability Act; in cases of intent or fraudulent misrepresentation; in cases of gross negligence; for injury to life, limb or health; in the event of the assumption of a guarantee by us; as well as in all other cases of statutory mandatory liability.
10.2. We shall also be liable to users for damages in the event of a culpable breach of a so-called cardinal obligation in accordance with the statutory provisions. Cardinal obligations in this sense are all obligations whose violation endangers the achievement of the purpose of the contract as well as all obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance one may regularly rely. However, if the breach of a cardinal obligation was only slightly negligent and did not result in injury to life, limb or health, the amount of the user's claims for damages shall be limited to the typical foreseeable damage.
10.3. In all other respects, any claims for damages by users against CAPTIQ - on whatever legal grounds, in particular on account of a material defect, defect of title and/or breach of other obligations arising from the contractual obligation or from a pre-contractual obligation (e.g. within the meaning of Section 311 (2) of the German Civil Code (BGB)) by us, our legal representatives, employees or vicarious agents, under Section 311 a of the German Civil Code (BGB) or in tort - are excluded.
10.4. Insofar as our liability is limited or excluded in accordance with the above provisions, this shall also apply to the personal liability of our legal representatives, employees and vicarious agents.
10.5. Any legal liability privileges, e.g. according to §§ 8 - 11 TMG, remain unaffected.
10.6. Claims for damages by users against CAPTIQ shall become statute-barred within the statutory limitation periods from the statutory commencement of the limitation period.
11. Third party content
Insofar as the platform or website contains links and references to third parties, in particular other websites, we have no influence on the current and future design and content of the linked pages and therefore assume no liability for them. The use of these third party contents is your own responsibility. If you notice that we have referred to pages with illegal or questionable content, please inform us so that we can remove this reference as soon as possible.
In the context of the provision of services, CAPTIQ shall comply with the statutory provisions of data protection law applicable to CAPTIQ, in particular those from the General Data Protection Regulation. CAPTIQ's data protection information can be found on the website.
13.1. Offsetting by the user shall only be permissible to the extent that its counterclaims have been legally established, are undisputed or have been recognized by CAPTIQ. In addition, the user shall be entitled to exercise a right of retention (only) to the extent that its counterclaim is based on the same contractual relationship, its counterclaims are undisputed, acknowledged or have been finally determined by a court of law.
13.2. Unless otherwise provided in this Agreement or in mandatory statutory provisions, the User shall not be entitled to assign or otherwise transfer its rights under this Agreement in whole or in part to a third party without the prior written consent of CAPTIQ.
13.3. The current version of these GTCS can be viewed on the website, printed out there and/or saved locally as a pdf document on a suitable data carrier.
13.4. General terms and conditions of the User or of third parties shall not become part of the contract without the express consent of CAPTIQ (even if CAPTIQ does not expressly object to such terms and conditions).
13.5. Under certain circumstances, CAPTIQ may need to amend these GTC (e.g. in the event of changes in the law relevant to CAPTIQ). In such a case, CAPTIQ shall notify the user of the relevant amended GTC in a suitable form (e.g. by e-mail or in the context of the user's use of the platform) and ask the user to agree to them. In the event that the User refuses or declines to agree to the amended GTC, (i) the User shall be entitled to extraordinary termination without notice for cause pursuant to Section 7.3. of these GTC, and (ii) CAPTIQ shall be entitled (a) to extraordinary termination without notice for cause pursuant to Section 7.3. of these GTC, provided that such termination appears necessary for CAPTIQ and the user is not thereby disadvantaged contrary to good faith, and (b) a right to blocking pursuant to Section 6. of these GTC, provided that such blocking appears necessary for CAPTIQ and the user is not thereby disadvantaged contrary to good faith. CAPTIQ shall again draw the user's attention to the aforementioned possible consequences of a rejection of the amended GTC in the context of the announcement of the correspondingly amended GTC.
13.6. The contract shall be governed by the laws of the Federal Republic of Germany, excluding (i) the rules of private international law, and (ii) the United Nations Convention on Contracts for the International Sale of Goods.
13.7. The exclusive place of jurisdiction for all disputes arising from or in connection with the contract is Frankfurt am Main.
13.8. Should individual provisions of the GTC be or become invalid, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to agree on a valid replacement provision that comes as close as possible to the invalid provision or the purpose intended by the invalid provision. The same shall apply in the event of a loophole in the contract.