T&C - General Terms and Conditions - KlickOwn AG
General Terms and Conditions of KlickOwn AG for the use of the platform (platform usage contract)
KlickOwn AG with its registered office in Hamburg, business address at Goldbekplatz 3, 22303 Hamburg, Germany (hereinafter also referred to as "KlickOwn") operates the crowd investment platform "www.klickown.com" (hereinafter also referred to as the "Platform"). The Platform enables Visitors to retrieve the information provided on real estate projects and, after registering as a User, to subscribe for tokenised bearer bonds in the form of so-called Tokens.
KlickOwn offers the investment brokerage of financial instruments pursuant to § 1 para. 1a sentence 2 no. 1 exclusively as a contractually bound agent pursuant to § 2 para. 10 German Banking Act (KWG) in the name, for the account and under the liability of NFS Netfonds Financial Service GmbH (NFS). In the opinion of the German Federal Financial Supervisory Authority (BaFin), blockchain-based forms of investment are among the regulated financial instruments and are therefore covered by the liability of NFS to the same extent as financial instruments.
The following General Terms and Conditions (hereinafter referred to as "GTC") apply to all business relationships between KlickOwn and the (potential) investor or the beneficial owner (hereinafter also referred to as "Investor").
For the purposes of these General Terms and Conditions ("GTC"), the following definitions shall apply in addition to the terms defined in the text:
- "Visits"/"Visitor to the Platform": every unregistered visitor to the Platform
- "Users"/ "Users of the platform": Visitor of the platform who has successfully registered.
- "investors": User of the Platform who has concluded one or more financing agreements via the Platform.
- "Real Estate Company": Company that collects capital for a real estate project.
- "Real Estate Project": any project described by a real estate company, such as the financing, refinancing, acquisition, development and/or renovation of real estate.
- "Real estate token": A denomination of a bearer bond with corresponding rights and obligations.
- "Financial instrument": Tokenised debt instrument;
- "Investment": the offering of a financial instrument;
- "issuer": the person or company issuing the financial instrument on the basis of a public offer
- "offeror" means the person or company offering a financial instrument of an issuer to the public; under certain circumstances, this may be the issuer
- "investment brokerage": the brokerage of the acquisition and sale of financial instruments pursuant to section 1(1a) sentence 2 no. 1 of the KWG, in the sense that this includes bringing together the provider of an investment and the investor with the aim of acquiring and selling financial instruments;
- "Online sales": the brokerage via a sales channel that runs on the Internet; the investor obtains information and subscribes to an investment from a mobile phone or desktop computer;
- "brokerage platform": the KlickOwn Internet portal, which can be accessed for online sales at https://klickown.com;
- "Subscription": the submission of a declaration of intent which intends to acquire a financial instrument by concluding a contract;
- "Contract Completeness": all documents relevant to the contract, including the appropriateness attribution, personal identification and account data are available to KlickOwn in an accepted form.
2. Scope of application
The legal relationship for the use of the platform between KlickOwn and the users of the platform is governed exclusively by the following provisions of these GTC. Successful registration creates a contractual relationship between KlickOwn and the users of the platform in accordance with these GTCs regarding the use of the platform ("platform usage contract"). The platform usage agreement enables the user to take note of the content displayed on the platform for his/her own information purposes. Any investment brokerage is not subject matter of the platform usage agreement. An investment brokerage is not affected with KlickOwn but with NFS, if the customer wants to use a concrete investment opportunity and submits a subscription declaration.
KlickOwn's brokerage platform enables its visitors to obtain information about financial instruments from various issuers and to subscribe to these financial instruments as a registered user in compliance with the legal provisions and the conditions of the respective offer. For further use of the platform visitors to the platform must register as a user by truthfully providing the requested personal data. Natural persons are only permitted to register if they are at least 18 years of age and have unlimited legal capacity. Legal entities may only be registered by their authorised representatives. Registration is mandatory with clear names and complete address information. Multiple registrations are not permitted. A legal claim to registration does not exist. KlickOwn can, at its own discretion, refuse registration without giving reasons and can also terminate the platform usage contract in accordance with the General Terms and Conditions. Investors must be resident in Germany and may only use the platform for their own account. The registration is personal and may not be transferred.
As part of the registration process, KlickOwn can give users of the platform the opportunity to choose an additional username with which they can visibly communicate with other users of the platform. Users are then free to choose such a username. The platform is not obligated to grant such a possibility. Usernames already assigned cannot be reassigned. Only the User and not KlickOwn as the operator of the platform is responsible for the statements made under a username.
After registration on the platform, KlickOwn will send a confirmation e-mail to the e-mail address provided by the user. Registration is not completed until the activation link in the email is confirmed. Registration with incorrect data is not permitted and can lead to exclusion from the platform. KlickOwn reserves the right to delete without prior notice registrations that were created with one-time email addresses (so-called "disposable email addresses") as well as registrations that were not activated within four months after creation. Users of the platform are obliged to keep the information provided during registration up to date at all times during the period of their registration. Users of the platform choose a password for the registered user account during registration. Users of the platform are obliged to ensure that this password is not made available to third parties. Each user of the platform is responsible for all actions taken via his account. Users of the Platform are obligated to notify KlickOwn immediately of any third-party knowledge of their password and any misuse of their account.
4. Use of the platform
KlickOwn makes the online mediation platform available to the user free of charge. The user is solely and fully responsible for protecting his access data for the platform (in particular username and password) from misuse and not making them available to third parties. Users of the Platform are obligated to notify KlickOwn immediately of any third-party knowledge of their password and any misuse of their account. KlickOwn reserves the right to exclude users temporarily or permanently from using the platform if it suspects misuse of the platform by the user or by third parties.
The user also bears the obligation to always keep the data created from his user profile in a truthful and current state and to protect access by third parties. In particular, if the user uses investment brokerage services of the KlickOwn AG which the latter provides on behalf of NFS, accurate information is in the user's own interest, as this information is required in order to be able to check whether the customer has sufficient knowledge and/or experience to understand the functionality, opportunities and risks of the financial instruments.
The communication channel between the user and KlickOwn within the framework of the platform usage agreement consists of telephone, fax, postal letter, SMS, email and online contact forms primarily in German and English, unless a special communication channel is prescribed or necessary in individual cases. For various contract-relevant matters (e.g. change of access data and bank details, termination of contracts, inheritance, transfer of capital investments) only written communication in the form of a postal letter including a personal signature is permitted, as long as KlickOwn does not explicitly provide other communication channels via its platform.
The content of a declaration of intent must be free of doubt. This applies to all declarations of intent, in particular to orders placed by the investor with KlickOwn. In particular, declarations of intent in the context of a change or recall of orders must be received by KlickOwn in a timely and proper manner. KlickOwn assumes no responsibility for the proper and timely processing of declarations of intent which are not clear or not executed in a timely manner by the investor.
KlickOwn points out that KlickOwn only carries out the legally prescribed appropriateness check, but does not carry out a creditworthiness check of the real estate companies and that with regard to the information provided by the real estate companies on real estate projects and financing agreements, only a check is carried out for plausibility and conclusiveness of the overall picture. In particular, KlickOwn does not check whether and to what extent the conclusion of contracts concerning the respective real estate project is economically reasonable for the individual investor. Each investor makes this assessment independently and on his own responsibility. The user is expressly referred to the risk information contained in the respective offer documents for the offers of the real estate companies. The user should only declare acceptance if he has read and understood the risk information in full.
The real estate company alone is responsible for the accuracy, completeness and up-to-dateness of the information made available on the real estate projects and financing agreements - also during the term of the financing agreements. The technical provision of information on the platform by KlickOwn and the possibility of concluding contracts via the platform do not constitute a recommendation or investment advice or legal or tax advice by KlickOwn. Users are urgently advised to obtain advice on economic, tax and legal matters, in particular from a lawyer and tax advisor, before concluding financing agreements.
Before submitting an offer to conclude a financing agreement via the platform, the information from the registration form must be updated. Any kind of comments, information and documents within the framework of the platform or the associated blogs that violate applicable laws or are otherwise inappropriate, in particular racist, pornographic, insulting or immoral content, are not permitted. Violations of this regulation can lead to an obligation to pay damages on the part of the user of the platform, to deletion of the affected contributions and/or to immediate exclusion of the user of the platform from further use of the platform.
As far as KlickOwn offers links on the platform to third party websites with foreign content, this foreign content was checked at the time of the first linking to see whether it would trigger civil or criminal liability. It cannot be ruled out that the contents may be changed by the respective providers afterwards. KlickOwn does not constantly check the contents of the linked websites for changes that could give rise to new responsibilities. Users of the platform are recommended to inform themselves about the applicable terms and conditions and the data protection notices of the respective providers on the forwarded/linked pages.
In the event of signs of misuse of the platform, in particular if contracts are concluded via the platform without fulfilment of the payment obligations arising from the relevant financing agreements, KlickOwn reserves the right to exclude the user from using the platform with immediate effect. KlickOwn has the right to reduce, expand or otherwise change the services offered to Users on the Platform at any time if this becomes necessary for good cause. An important reason exists in particular if the services violate a legal prohibition or cause significant tax disadvantages for KlickOwn or the users of the platform or suffer from significant legal deficiencies. However, KlickOwn has no obligation in this regard. The users of the platform will be informed in good time before a change in services by email or on the homepage.
5. Investment opportunities and later subscription
Issuers can use the KlickOwn platform to inform interested investors about the respective capital investments. The issuer is responsible for the content and accuracy / completeness of the information on the investment. This also applies in particular if and insofar as KlickOwn provides information on capital investments that has been taken from the respective presentations, information or documents of the issuers or providers, in particular any income reported or promised by the issuers or providers or information on the expected development of the financial instruments. There is a time limit for the acquisition of investments, which is individual for each financial instrument. The Issuer and KlickOwn reserve the right to change the time limit at any time. There is also the right to terminate the offer prematurely, especially if there is a full placement. In the event of an over-placement, the "first come, first served" principle applies, whereby the completeness of the contract is decisive. If it comes to the case that a subscription amount exceeds the available volume of the financial instrument, the Issuer may reduce the subscription amount according to the volume still available.
When making an investment decision, the user bears full responsibility for obtaining information and checking it. This means that the user is obliged to carry out an intensive review of all documents, risks and other circumstances relating to the financial instrument before subscribing to a financial instrument, so that a decision on the subscription of a capital investment is made solely and under his own responsibility. In order to successfully complete a subscription for the purchase of a financial instrument, it is required that users complete all electronic form pages completely and truthfully during the subscription process on the platform and click on the "Submit Subscription Offer Now" button on the overview page at the end of the subscription process. This triggers an offer for the respective financial instrument but does not automatically lead to the conclusion of a contract.
Such a contract for the acquisition of the respective financial instrument only comes into existence when (i.) the completeness of the contract has been verified, (ii.) the issuer or a third party commissioned by the issuer accepts the user's subscription declaration and (iii.) a confirmation of the acquisition is sent by e-mail by KlickOwn.
The issuer or a third party commissioned by the issuer reserves the right to accept the user's subscription declaration in whole or in part, with the exception that the offer conditions of the respective investment expressly stipulate otherwise.
In the event that KlickOwn should be commissioned to decide on the acceptance or rejection, this will be announced in advance in the offer conditions of the respective capital investment. As part of the subscription process on the platform, details of the offer, the subscription, the conclusion of the contract as well as further acquisition conditions and restrictions are shown and confirmed by the user within further contracts and contractual terms and conditions.
6. Availability of the platform
KlickOwn strives to achieve comprehensive availability of the platform within the framework of what is technically and economically reasonable. For technical reasons, however, users of the platform cannot be granted a claim to constant availability at all times. In particular, maintenance, security or capacity reasons as well as events beyond the control of KlickOwn can lead to the temporary suspension of the services offered and the availability of the platform. KlickOwn assumes no liability for technical difficulties experienced by users of the platform or by third parties. KlickOwn reserves the right to temporarily restrict access to the platform at any time if this is necessary with regard to capacity limits, the security of KlickOwn's systems, the implementation of technical measures or for other important reasons.
In the event of maintenance or repair work being carried out, the user will be informed in an appropriate manner of the limited accessibility of the platform. A limitation of the accessibility and use of the platform can be triggered by the individual technical equipment of the user and quality. It is the responsibility of the User to create the technical framework conditions for the User to be able to reach the platform without restrictions. In order to use the platform, appropriate settings on the user's computer or mobile phone may also be required, e.g. allowing the storage of cookies. KlickOwn is not liable for damages and other consequences that may result from a limited availability or a failure of the availability of the platform.
7. Payment processing, contract period and cancellation
When purchasing a financial instrument, the investor instructs payments to the respective issuer. KlickOwn itself does not accept any payments. KlickOwn itself does not accept any payments. Further details regarding the processing of payments are set out in the contracts and contractual terms and conditions which are confirmed by the user in each case during the subscription process. The contract of use for the platform is concluded between KlickOwn and the user for an indefinite term.
The user contract can be terminated by the user and by KlickOwn at any time with a notice period of 15 days to the end of the month.
The right to extraordinary termination for good cause remains unaffected for both parties. Any termination must be made in text form. Termination by e-mail to [email protected]
is also possible. Financial instruments acquired by the investor, their administration and settlement by KlickOwn as well as KlickOwn's recording and documentation obligations remain unaffected by a termination.
8. Costs, fees, commissions
The platform usage agreement is free of charge for the user. The use of the platform is basically free of charge. KlickOwn and NFS receive performance and turnover-based fees from the respective issuer for the brokerage of financial instruments. KlickOwn also receives additional fees for other services provided for providers of financial instruments. The amount of the aforementioned remuneration will be announced in an appropriate manner in the event of an investment brokerage in each individual case.
9. Data protection and confidentiality
The collection, processing and use of personal data within the scope of registration is carried out in strict compliance with data protection regulations. Further information on this can be found in the data protection information under Data Protection, available at https://klickown.com/privacy/
. Users of the platform or investors must treat the contents of the concluded financing agreements as confidential. Information about real estate companies and real estate projects may only be used for the purposes pursued by the platform and stated in these GTC. KlickOwn only makes the data provided by users/investors available to other visitors/users/investors if the user of the platform has given his or her consent and the data does not violate legal regulations or the GTC. KlickOwn reserves the right to randomly check the data and/or information and documents of users of the platform.
KlickOwn is liable to the user/investor without limitation for injury to life, limb or health and for damages resulting from the intentional or grossly negligent violation of his contractual obligations from the platform usage contract. Furthermore, KlickOwn is only liable in cases of slight negligence in the event of a breach of essential contractual obligations, i.e. the breach of obligations whose fulfillment is essential for the proper execution of the platform usage contract and on whose compliance the contractual partner may regularly rely ("cardinal obligation"). In the case of a slightly negligent breach of a cardinal obligation, the liability of KlickOwn is limited to such typical damages and/or such a typical scope of damages that were foreseeable at the time of the conclusion of the contract. The aforementioned limitations of liability also apply in the case of the fault of a vicarious agent of KlickOwn as well as for the personal liability of the employees, representatives and organs of KlickOwn.
There is no liability by KlickOwn, NFS Netfonds or the Issuer towards the investors in connection with the investments in each case for the tax, economic or legal objectives pursued, in particular not for the success of the respective financial instruments or the compliance with forecasts made in connection with the respective financial instruments. The disclaimers and limitations of liability set forth herein also apply for the benefit of the employees of KlickOwn and NFS Netfonds as well as their respective vicarious agents and other third parties who assist KlickOwn and NFS Netfonds in the performance of the agreement.
There is a statute of limitations on possible claims of the investor against KlickOwn and NFS Netfonds based on the fact that the information provided (e.g. on the platform or in documents) is incorrect and/or incomplete. The statute of limitations is one year - as far as legally permissible and begins at the time the investor became aware of the incorrectness and/or incompleteness, but no later than three years after the date on which the information concerned was first published.
11. Final provisions
KlickOwn reserves the right to change these terms and conditions at any time and without giving reasons with effect for the future. Registered users of the platform will receive the amended GTCs by e-mail no later than four (4) weeks before they come into effect. KlickOwn will also draw attention to the amendment of these GTCs on the platform itself. If registered users of the Platform do not object to the validity of the amended GTCs within four (4) weeks of receiving notification of the amendment to these GTCs, the amended GTCs are deemed to have been accepted by them. KlickOwn will separately inform registered users of the Platform of the legal consequences of silence in the notification of the change to these GTC.
These GTC and the legal relationship between KlickOwn and the users/investors are subject to the laws of the Federal Republic of Germany. The statutory place of jurisdiction applies. Should individual provisions of these GTC prove to be invalid or unenforceable, the validity of the remaining provisions of the GTC shall not be affected.