General; subject of regulation
1.1. The CAPTIQ GmbH (Neue Mainzer Str. 66 - 68, c/o Mindspace Eurotheum, 60311 Frankfurt am Main) ('CAPTIQ', 'we', 'us') operates an online loan brokerage platform (available at www.captiq.com, also referred to as the 'Website'), which allows users, who are members of professional chambers (such as lawyers, doctors, etc.), in accordance with these General Contractual Terms and Conditions ('GTC'), to enter into loan agreements with a financing partner (such as a bank) (the 'Platform').
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 enter into loan agreements with users itself, but rather acts as an intermediary, facilitating loan agreements between users and a financing partner through the platform. (You can find a list of the financing partners currently eligible for such intermediary services by CAPTIQ as lenders at the following link: www.captiq.com/finanzierungspartner.) With the platform, CAPTIQ provides the opportunity for a user and the financing partner to communicate, provide statements, and exchange information between each other regarding a loan agreement, its initiation, and its execution.
1.4. CAPTIQ does not guarantee a successful intermediary outcome to the user. This means that the user has no claim against CAPTIQ for the intermediation services resulting in the conclusion of a loan agreement between the user and the financing partner for the desired loan. CAPTIQ has no influence on the terms of a loan agreement between the financing partner and the user. Regarding loan agreements concluded between the user and the respective financing partner through the platform, only the contractual terms agreed upon between the user and the financing partner 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.
For registration, an authorized advisor must transmit user data (including salutation, last name, first name, address, email address, company name, legal form, accounting method, company address) to CAPTIQ through a technical interface to the platform or a specific web access to the platform. In this context, CAPTIQ sends an email to the user's provided email address by the advisor (an offer to enter into a contract from CAPTIQ), in which the user is asked, among other things, to accept these GTC (usually by clicking a button in the email). Additionally, as part of a successful registration, the user must confirm that their advisor is authorized to perform certain actions related to the loan application process on their behalf and that they can receive certain information from CAPTIQ in this regard. By accepting the GTC by the respective user (usually by clicking the aforementioned button), the user accepts CAPTIQ's offer to enter into a contract. CAPTIQ will promptly confirm the user's registration completion via email. The advisor will also be informed by CAPTIQ in an appropriate manner about the contract conclusion shortly after the contract has been concluded.
2.2. The registration, setup, and activation of the CAPTIQ account, as well as the use of the platform, are generally free of charge for users. However, a payment obligation on the part of the user in the form of a brokerage fee arises in connection with the use of the platform when the user enters into a loan agreement with a financing partner through or in connection with the platform (see section 5 below for details on the brokerage fee to be paid upon successful brokerage of a loan agreement; also refer to 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 obligated to keep their CAPTIQ account password secure and to take precautions to secure access to their CAPTIQ account. The user ensures that no unauthorized third party gains knowledge of their password. The user is obliged to maintain the confidentiality of their password and to change it promptly if they suspect that unauthorized third parties have become aware of it. The user is required to promptly inform CAPTIQ if there are indications that their CAPTIQ account has been misused by third parties. If further misuse is anticipated, the user must notify CAPTIQ of the suspension of their CAPTIQ account ('blocking notification'): either in writing to CAPTIQ GmbH, Neue Mainzer Str. 66 - 68, c/o Mindspace Eurotheum, 60311 Frankfurt am Main) or by email at email@example.com. The user is liable to CAPTIQ for damages caused by the user's culpable breach of the aforementioned obligations. The user is responsible for all activities carried out using their CAPTIQ account, including abusive activities by third parties, unless the user is not responsible for the misuse or has not violated their 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, are permitted to use the platform within the intended scope and in accordance with the provisions of these GTC to initiate and complete the conclusion of a loan agreement between the user and the financing partner.
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 is permitted to provide the user and the financing partner with the necessary extent of relevant data, information, and possibly communications concerning the initiation, conclusion, execution, and processing of a loan agreement requested by the user or their advisor through the platform (for instance, CAPTIQ may transmit information received from the financing partner to the user).
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 providing the platform (along with its corresponding features and services), CAPTIQ creates the opportunity for users to potentially conclude a loan agreement (as defined in section 4.2 below) with a financing partner. Through the provision of the platform (and its corresponding features and services) and the associated activities of CAPTIQ in relation to the initiation of corresponding loan agreements (as described in section 4.1 below), CAPTIQ provides an intermediation service (for which the user is required to pay). Therefore, upon the conclusion of a loan agreement, the user owes CAPTIQ a brokerage fee, which is further described in section 5.
4. Contract conclusion between the user and the financing partner.
4.1. If any preliminary assessments carried out by CAPTIQ regarding the user (such as the user's creditworthiness) indicate that the user – as determined by CAPTIQ – is generally eligible for the loan requested by the user, CAPTIQ will provide the user with a loan contract draft from the financing partner. However, this transmission of the loan contract draft does not constitute an application for the conclusion of the loan agreement by the financing partner.
Instead, the user submits an offer to conclude the loan agreement with the financing partner by signing the loan agreement through electronic signature and submitting the contract. In this process, CAPTIQ acts as an agent of receipt for the financing partner and forwards the corresponding contract documents to the financing partner after conducting any further preliminary assessments by CAPTIQ for the financing partner concerning the submitted documents and information. The user's offer to conclude the loan agreement becomes effective with the financing partner upon receipt of the corresponding contract documents after being forwarded by CAPTIQ. If the aforementioned preliminary assessments by CAPTIQ regarding the documents and information submitted by the user result in a negative outcome, CAPTIQ will not forward the corresponding contract documents to the financing partner and will inform the user accordingly.
The user has no entitlement to the financing partner's approval of such a loan request from the user and subsequently entering into a corresponding loan agreement with the user (this is solely at the discretion of the financing partner).
4.2. The loan agreement does not require a separate acceptance declaration from the financing partner. The loan agreement is tacitly concluded by disbursing the loan to the user (this moment is also referred to as the 'loan agreement conclusion').
4.3. The financing partner is free to decline loan requests from the user or offers from the user to conclude a loan agreement regarding the user. The decision lies solely within the discretion of the financing partner. If the financing partner does not accept a user's contract offer, CAPTIQ will inform the user accordingly.
4.4. For clarification: CAPTIQ is not a party to the loan agreement. A loan agreement, if at all, is only concluded between the user and the financing partner.
5. Agency fee
5.1. Within the context of the loan agreement between the user and the financing partner, the user obtains a loan from the financing partner. This loan encompasses, on one hand, the actual loan amount desired by the user (referred to as the 'loan recipient disbursement amount' or simply the 'disbursement amount') and, on the other hand, an additional percentage-based brokerage fee for CAPTIQ (referred to as the 'brokerage fee'). This means that the user finances the brokerage fee payable to CAPTIQ alongside the loan amount.
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 will agree with the financing partner within the framework of the loan agreement and will irrevocably instruct the financing partner to directly disburse the brokerage fee to CAPTIQ at 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 a justifiable reason for termination of the contract due to significant cause (see section 7.3 below); and/or
- an unauthorized, unlawful, contractual, or abusive use of the CAPTIQ account is occurring or imminent, such as by impairing or disrupting the functionality of the platform (breach of system integrity), transferring the CAPTIQ account to third parties, or providing unauthorized third parties access to the CAPTIQ account; and/or
- there is reasonable suspicion that the user is involved in fraudulent and/or unlawful activities related to the platform and a suspension appears necessary for the protection of CAPTIQ's and/or the respective financing partner's interests, from CAPTIQ's perspective; and/or
- false information was provided during 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 can terminate the contract at any time without observing a notice period in written form via email to firstname.lastname@example.org or in writing. CAPTIQ is entitled to terminate the contract at any time with a notice period of two (2) months to the end of the month, in writing or in written form. Furthermore, regular termination of the contract by either party is 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 provided false information regarding their loan request; and/or
- the user is involved in fraudulent and/or unlawful activities related to the platform and a suspension appears necessary for the protection of CAPTIQ's and/or the respective financing partner's interests, from CAPTIQ's perspective; and/or
- an unauthorized, unlawful, contractual, or abusive use of the CAPTIQ account is occurring or imminent, such as by impairing or disrupting the functionality of the platform (breach of system integrity), transferring the CAPTIQ account to third parties, or providing unauthorized third parties access to the CAPTIQ account.
A termination under section 7.3. must be made in writing or in written form (if initiated by the user, through an email in text form to email@example.com).
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 contracts between the user and the financing partner remain unaffected by the termination of the agreement. Termination of the loan agreement between the user and the financing partner (regardless of the legal basis) does not affect the contract (in particular, the user's obligation to pay the fee under section 5 shall fully persist in the event of the termination of the loan agreement, regardless of the legal basis).
8. Intellectual property and permitted use of the platform
8.1. All elements of the platform or the website, including data and materials such as images, graphics, illustrations, designs, symbols, photos, texts, and other representations (referred to as 'Contents' in this section 8) are the property of CAPTIQ or licensors and are protected by copyright, trademark rights, 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.