Terms and Conditions of Profinanz Capital Partners GmbH
Only the following terms and conditions apply to all Contracts with Profinanz capital partners, which are regarded as agreed upon in the course of a Contract with the client. Terms of the client are irrelevant and can not by commercial confirmation be included in the contractual relationship.
II. Subject Matter
Profinanz capital partners provides its services under its own responsibility with the client’s interests in mind. Place and time of the activities will be determined by profinanz capital partners own responsibility, with the client’s interests in mind.
In as far as for the performance of said operations regarding section 1 item 1. of this Contract legal advice is required, this is not included in the scope of this Contract. The client agrees in such a case to appoint an independent solicitor. The appointment takes place exclusively at the expense of the client.
Profinanz capital partners owes no single billing and charges a flat fee instead. The flat fee and any claims for extension are independent of whether the desired success will occur.
If the client orders any services in addition to clause 1 item 1., this requires an amendment to this Contract, including the determination of the additional fees.
The client shall in case of the submission of a written offer of a third party be committed in the context of the contingency fee to declare the acceptance within 8 days from receipt. In the case of the lapse of the deadline the offer will be considered as not being accepted. An offer is considered as binding, if it includes the usual terms and conditions.
If the client fails to submit the documents and information required for the submission of a binding offer despite of written notice within 14 days and a grace period of an additional week, and/or the Information are not correct, and consequently no binding offer can be submitted, the client shall pay to profinanz capital partners an expense allowance amounting to € 7.500,00 (plus VAT law valid), without profinanz capital partners having to submit any proof. The client may claim that to profinanz capital partners lower expenses arose, however, profinanz capital partners may also claim and proof that their expenses were higher.
The success fee will be due also if the binding offer/promise to finance was not procured by profinanz capital partners directly but is based on the services of profinanz capital partners. Profinanz capital partners is also entitled to the implementation fee if the binding offer was implemented based on profinanz capital partners services, however, this also includes a period of 24 months after the termination of this Contract.
The success fee is also owed if the client during or after completion of the Contract contacts the third party provided by profinanz capital partners and the subject matter is successfully concluded within 24 months after termination of this Contract.
IV. Invoice and Payment
The maturity of any other fees is based on the respective agreement reached. The reimbursement of expenses will be due upon invoicing by profinanz capital partners, payment shall be made at the latest within seven days upon receipt of the invoice.
Payments to profinanz capital partners shall be transferred to:
Deutsche Bank AG
Münchner Bank eG
V. Commencement and Term
Independent of whether or not a fixed term has been agreed upon for this Contract, the right to terminate this Contract for an exceptionally important reason remains unaffected. Such an important reason is most of all:
- If insolvency proceedings were opened for the assets of one of the parties or file for bankruptcy was rejected due to lack of assets;
- One of the parties to this Contract violates any material obligations and does not omit despite of respective warning within a reasonable time. The above is is just an example and does not claim to be complete. In case of termination without notice open services or payments are to be compensated.
VI. Obligation to Secrecy, Protection of Customers and Employees
Profinanz capital partners will in the context of the cooperation pursued with the client provide contacts for discussions regarding fulfilment of this Contract. These contacts are subject to customer protection, i.e. the client may not contact them without the participation of profinanz capital partners, nor may the client contact them for 24 months after termination of this Contract. In addition guarantees the client complete obligation to secrecy of any information and assures not disclose or use this information to third parties. Profinanz capital partners shall designate in writing the customers under customer protection. By naming them, these customers are subjects to the secrecy regulation. Liability for financial losses is limited to such losses, as must typically be expected within the framework of this Contract. Liability is limited to the amount of the insurance sum according to the client’s liability insurance with the Allianz Versicherungs-AG amounting to up to € 2 million for each individual case.
In case of violation of this rule the client owes a contractual penalty of € 25.000,00 in addition to a possible success fee in the case of obtaining a binding offer. In addition, the parties to this Contract agree to mutually keep strictest silence about all over this Contract acquired information except that the disclosure of information and documents is necessary to fulfil this Contract. The obligation to secrecy does not apply, if the information and documents have to be disclosed by law, for example, to the tax office, and/or the information and the documents are accessible to the public. The obligation to secrecy continues to be valid even after expiration of this Contract. In addition, both parties agree not to poach, to employ or to use in any way the employees of the other party, which are involved in the performance of this Contract, this will also be valid for 12 months after the expiration of this Contract, irrespective of the reason to do so. If the client finds out, that any employee of profinanz capital partners who is engaged in this Contract is planning to terminate his employment, the client agrees to immediately inform profinanz capital partners of such a case.
Each party to this Contract is responsible for all actions or omissions in connection with this agreement. However, profinanz capital partners are not responsible for the successful completion of the transaction, nor is the company responsible or liable for reaching a certain economic goal. Profinanz capital partners, its legal representatives, assistants or vicarious agents are unlimited liable in cases of injury for life and limb or damage to health. In case of profinanz capital partners violating contractual duties, which are essential to reach the object of this Contract (cardinal duties), the following applies:
Liability for intentional behaviour of profinanz capital partners i.e. gross negligent behaviour both remains unaffected. Regarding the limitation period of the client’s possible asset claims for damages the legal regulations apply, except that the limitation period is limited to one year. This does not apply in cases of gross negligent behaviour.
For violations of contractually defined additional duties including claims for damages due to unauthorized actions, the liability of profinanz capital partners for loss of assets is excluded in cases of negligent behaviour. Liability of profinanz capital partners for intentional or gross negligent behaviour and any resulting losses of assets remain unaffected, with the liability in the case of gross negligent behaviour is limited to the insurance coverage of the liability insurance at the Allianz AG amounting up to € 2 million for each individual case. In case of a violation of this regulation the client owes a contractual penalty of € 25.000,00 in addition to possible success commissions for obtaining a binding offer. Further more, the contractual parties agree to keep strictest silence about all information acquired in connection with information and documents, providing that the disclosure of information and documents is not required to fulfil the Contract. The obligation to secrecy does not apply if the information and the documents have to be disclosed for legal reasons, for example, to the tax office, i.e. the information and documents are obvious facts, available to the public. The obligation to secrecy remains valid even after the expiration of the Contract.
In addition, both parties agree not to poach, to employ or to use in any way the employees of the other party, which are involved in the performance of this Contract, this will also be valid for 12 months after the expiration of this Contract, irrespective of the reason to do so. If the client finds out, that any employee of profinanz capital partners who is engaged in this Contract is planning to terminate his employment, the client agrees to immediately inform profinanz capital partners of such a case.
VIII. Final Provisions
Profinanz capital partners are entitled to display the client’s company name for purposes of reference (simple entry of name in reference lists, without leading to conclusions about the contents of the respective projects). To this the client agrees already here.
Verbal collateral agreements and supplements to this agreement shall not exist and in any case will be valid only if they are made in writing. This also applies to any subsequent amendment to this clause.
The parties agree, that exclusively the law of the Federal Republic of Germany applies to this Contract, its performance and its interpretation.
The exclusive jurisdiction for all disputes arising from this Contract, its performance and its interpretation, to the extent permitted by law, is Munich.
If individual clauses of this Contract are void or ineffective i.e. unworkable, the other provisions shall not be affected. The void or ineffective i.e. unworkable provision will be replaced by a provision, which in a legally permissible manner comes closest to the economic intention. This applies also to a later discovered regulatory gap.