General Terms and Conditions
Status: April 12, 2023
1.Scope of application
1.1 DealCircle GmbH (“DealCircle”) establishes contact between owners of companies or company shares or their representatives/advisors (“Sales Consultants”) and potential buyers/investors or their representatives/advisors (“Buyers”).
1.2 The introduction can be established via two ways:
1.2.1 DealCircle operates an online platform (“Platform”) on which Sales Consultants and Buyers (collectively “Users”) can access self-provided information on projects relating to the acquisition of companies or shares in companies (“Projects”) and thus contact each other. The contact mediation between the Buyer and the sales consultant can additionally or alternatively be done by DealCircle directly via email.
1.2.2 DealCircle introduces projects to buyers via email and if interested, establishes contact with the sales consultant of the respective projects via email. (“Private Matching”).
1.3 The contact mediated by DealCircle can be used by the Sales Consultants and Buyers to conclude company purchases, financing or investments (“Transaction”) with each other. The Transaction involves the payment of a sum of money or other monetary benefit in an ascertainable amount by the Buyer to the owner of companies or company shares willing to sell.
1.4 These General Terms and Conditions (“GTC”) govern all contractual relationships in connection with the use of the Platform and Private Matching. General Terms and Conditions of the Sales Consultants and Buyers will not become part of the contract even if DealCircle does not expressly object to their inclusion.
1.5 The offer of DealCircle is not directed to consumers. Consumers are those persons who conclude a legal transaction for purposes that can predominantly not be attributed to their commercial or self-employed professional activity.
2.Conclusion of contract
2.1 The User makes an offer to DealCircle to conclude a contract based on these GTC by completing the registration of the platform. The offer can also be made in writing, orally or by telephone. Only by a separate explicit declaration of acceptance in text form, activation of the account or execution of a contact mediation by DealCircle the contract is concluded.
2.2 The Buyer also makes an offer to DealCircle to conclude a contract on the basis of these GTC by requesting a contact mediation with a sales consultant in response to a corresponding request from DealCircle in the context of Private Matching. The contract will then be concluded by DealCircle performing the contact mediation.
2.3 The User has no right to register or conclude a contract with DealCircle.
3.1 Based on the available information about the potential transaction interest, DealCircle anonymously suggests to the user via the platform or in the context of private matching the contacting of potentially matching users in the respective complementary role (sales consultant or user). The user profiles (of the sales consultant and the potential buyers) and projects remain anonymous until both users have agreed to be contacted.
3.2 DealCircle establishes the initial contact between the involved users after mutual agreement on the platform or in the context of private matching. DealCircle does not assume any further advisory or other role in the possible contract negotiations between users.
3.3 DealCircle will receive a success fee from the Buyer for the initial contact in case of a transaction between the Sales Consultant and the Buyer in accordance with clause 4.
4.Success fee by the buyer
4.1 In case of a successfully concluded transaction between the Sales Consultant and the Buyer, whose first contact in relation to this transaction was made due to a contact establishment by DealCircle, the Buyer will pay DealCircle a success fee in the amount of a share of the transaction volume as agreed for the project on the platform or in the context of the email exchange for a private matching. As far as the establishment of the contact has taken place by way of Private Matching, the conditions for the success fee specified in the corresponding email request take precedence over the conditions on the platform. As far as a valid framework fee agreement exists between the Buyer and DealCircle, the conditions contained in the framework agreement have priority over the conditions on the platform.
4.2 “Transaction volume” shall mean the cash inflow to the shareholder of the sold company(ies) which is consideration for the transfer of the object of purchase to the buyer, regardless of whether this includes, for example, the purchase of the shares, the repayment or assumption 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 takeover date as well as any mandatory capital increases, granting of shareholder loans or contributions in kind by the buyer. The transaction volume also includes any earn-out payment and any vendor loans that may be granted by the seller. The Buyer shall be entitled to set off 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.
4.3 The Earn-Out Payment shall be understood – to the extent required by law – plus the applicable value added tax.
4.4 For the avoidance of doubt, the Buyer shall also owe the Earn-Out Payment if a natural person or legal entity having a close and permanent legal or personal relationship with the Buyer (e.g. a company affiliated with the Buyer pursuant to § 15 German Stock Corporation Act (AktG), a company in which the Buyer holds an interest or an investor represented by the Buyer or a co-investor approached by the Buyer) carries out the transaction instead of the Buyer or with the Buyer.
4.5 The Buyer owes the success fee even if the transaction takes place after the termination of the contractual relationship with DealCircle, but due to the original contact mediation of DealCircle.
4.6 The success fee by the Buyer is due at the time of transfer of the shares in the company or the material assets of the company from the Seller to the Buyer (“Transfer of Participation”). In any other case of financing, the performance fee shall become due upon conclusion of the contract on the financing. Any subsequent reduction of the purchase price does not affect DealCircle’s claim for remuneration.
4.7 The time of transfer of participation is (i) in case of acquisition of shares the time of execution of the share transfer agreement, (ii) in case of acquisition of GmbH business shares the time of execution of the business share transfer agreement, (iii) in case of acquisition of assets the time of the first payment of the Buyer for the assets and (iv) in all other cases the time of the first payments within the transaction for the acquisition of the participation in the company.
4.8 The performance fee shall be payable within 15 days from the due date. Thereafter, the Buyer shall be in default of payment even without a reminder.
5.Duty to Report and Right to Information
5.1 If DealCircle establishes a contact which already existed between the Buyer and the Sales Consultant regarding this specific transaction, the Buyer is obliged to reject the proof of contact by DealCircle in written or text form within 14 days. A contact is considered to be established by DealCircle, unless the Buyer proves that the contact between him and the Sales Consultant in relation to this concrete transaction already existed independently of DealCircle’s services.
5.2 In case of one or more transactions between two Users or a Sales Consultant and a Buyer within 36 months from the establishment of the initial contact by DealCircle, the Buyer has to report the transaction(s) to DealCircle within 7 days after the transfer of the participation (“Closing Report”). The Closing Disclosure has to be made in written form by email to email@example.com and contains at least the following information: (i) information about the transaction with parties, time and transaction object, (ii) information about the parameters relevant for the calculation of DealCircle’s remuneration, especially and at least the transaction volume.
5.3 Each User (whether in Buyer or Seller role) is obliged to comply with a request for information from DealCircle about any transactions within 14 days. Clause 5.2 applies accordingly to the content of the information.
6.Confidentiality, Disclosure of Information
6.1 The User is prohibited from disclosing to third parties the information and data which can be viewed on the platform, which is specifically prepared at DealCircle and exclusively accessible for registered users or otherwise made available to the User by DealCircle. This also applies to information and data made available by DealCircle in the context of private matching.
6.2 Third parties shall in particular also include companies directly or indirectly affiliated with the User, companies within the meaning of Section 15 of the German Stock Corporation Act (Aktiengesetz) or related parties within the meaning of Section 138 of the German Insolvency Code (Insolvenzordnung) as well as companies in which the User directly or indirectly holds an interest (e.g. on the basis of a trust agreement).
6.3 If the Purchaser breaches the obligations under Sections 6.1 and 6.2 and the third party informed by the Purchaser thereupon concludes a contract with the sales consultant or carries out the transaction, the Purchaser shall owe the success fee as if it had concluded this contract itself or carried out the transaction itself.
7.Further Duties of the User; Indemnification
7.1 The User may not enter any data and/or other content in his profile and projects that violate applicable legal provisions or the rights of third parties (in particular copyrights and personal rights). Furthermore, the user has to enter all information about his profile and projects truthfully. DealCircle reserves the right to delete data of the user, which is suspected to violate this clause 7.1 based on objective facts.
7.2 The User indemnifies DealCircle from all damages, claims of third parties, expenses and costs (including customary legal fees not limited to the legal fees), which DealCircle incurs due to a violation of the User against clause 7.1. Further contractual and legal rights and claims of DealCircle remain unaffected.
8.1 The company, profile and project data displayed on the platform is exclusively provided by the respective users. DealCircle is not liable for the accuracy and completeness of the company, profile and project data displayed on the platform. DealCircle is also not liable for the conclusion of a transaction between the Seller Consultants and Buyers after the initial contact has been made.
8.2 DealCircle is liable without limitation for intent and gross negligence as well as for damages resulting from injury to life, body or health, breach of a warranty – to be expressly designated as such – as well as under the Product Liability Act.
8.3 In cases of slight negligence DealCircle is only liable in case of breach of an essential contractual obligation (i.e. especially not in the cases described in section 8.1). An essential contractual obligation in the sense of this clause 8.3 is an obligation the fulfillment of which enables the execution of the contract and on the fulfillment of which the User may therefore regularly rely. The liability according to this clause 8.3 is limited to the contract-typical and foreseeable damage at the time of the conclusion of the contract. The limitations of liability apply accordingly in favor of the legal representatives, employees, agents and vicarious agents of DealCircle.
9.Blocking of a user
9.1 DealCircle reserves the right to block users temporarily or permanently in case of serious or repeated violations of these GTC. Further legal and contractual rights and claims of DealCircle remain unaffected.
9.2 A serious violation of the GTC in the sense of clause 9.1 is especially given if there are concrete indications that a user (i) uses the platform without having an interest in a transaction, (ii) tries to avoid the obligation to pay the success fee directly or indirectly, (iii) does not comply with the reporting obligation according to clause 5, (iv) violates obligations from clauses 6 or 7.
10.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.