advinda Investor Cloud
These are the terms and conditions of advinda Investor Cloud GmbH, Brienner Str. 14, 80333 München, Germany (hereinafter referred to as “Company“) governing the contractual relationship regarding the use of the area of the Company’s website for registered users under www.advinda.com (this area hereinafter referred to as “Website“), Company’s application distributed in App-stores (as for example Google Play App Store, iTunes App Store) (hereinafter referred to as “App“) as well as the subscription to the advinda Investor Cloud (these terms and conditions hereinafter referred to as “Terms and Conditions” or “Contract of Use“). While the use of the Website and App generally is free of charge, access to and use of the advinda Investor Cloud is subject to a subscription fee.
The advinda Investor Cloud is a database containing information on “Institutional Investor Intelligence”, including e.g. top lists of EU and US Pension Funds and top lists of EU and US insurance companies and contact details thereof (referred to as “advinda Investor Cloud“).
1. SCOPE OF CONTRACT OF USE
1.1 Solely on the basis of these Terms and Conditions, access to and usage of the Website, App and advinda Investor Cloud will be granted by Company only to enterprises within the meaning of Section 14 of the German Civil Code (“BGB“) (such enterprise hereinafter referred to as “Client“). Each registered user has to act for such enterprise (such user hereinafter referred to as “User“). Access to and usage of the Website, App and/or advinda Investor Cloud will not be granted to consumers within the meaning of Section 13 BGB. Access to and usage of the Website, App, and/or advinda Investor Cloud is not permitted for Clients which business purpose is to support fund managers in raising capital from institutional investors or any other third party marketing distributor in the institutional investment world, regardless of the asset class (such Clients hereinafter referred to as “Placement Agencies“). Reference is made to Section 6.
1.2 The Terms and Conditions apply to any and all offers made on Company’s Website and/or App (including subscriptions to the advinda Investor Cloud). Conflicting, deviating or complementary terms and conditions provided by Client do not The Website and App offer functionalities of a client relationship management tool that allows Users to create investment campaigns, create tasks and to upload contact details and other content (such content hereinafter referred to as “Custom Data“). The advinda Investor Cloud, as part of the Website and/or App, is available based on different advinda Investor Cloud modules with deviating scope and content, as further described on the Website and/or App.
1.3 Client acknowledges and agrees that the information in advinda Investor Cloud might be outdated due to circumstances outside the sphere of Company; as a result the information in the advinda Investor Cloud may not be correct and up-to-date at all times. However, Company updates the advinda Investor Cloud in accordance with Section 2.
2. CONCLUSION OF CONTRACT OF USE
2.1 Downloading the App or visiting the Company’s publicly available internet pages does not constitute a contract with the Company. A Contract of Use between Company and Client is concluded in case a User registered successfully for the Client. Subsequent to submitting of the initial registration data (email address and password) of a potential User for the first time and acceptance of this Contract of Use by the potential User by means of the checkboxes provided for this purpose, the App or Website sends a registration link to the potential User’s email address. If the potential User clicks on the registration link, he/she will be requested to provide further Client information and to submit the registration request. With Company’s confirmation that the registration was successful, a Contract of Use regarding the use of the App or Website is concluded between Company and the Client for this registered If further individuals register for the same Client, the relationship between the Client and the Company will be governed by a separate Contract of Use for each User.
2.2 Regarding the access and use of the advinda Investor Cloud, the presentation and description of advinda Investor Cloud on Company’s Website and/or App does not constitute a binding offer, but shall serve only as an opportunity to transmit a binding offer to Company to conclude a contract for the access to and use of certain modules of the advinda Investor Cloud (such contract hereinafter called “Subscription Agreement“). By choosing the offer on the Company’s Website and/or App and pressing the button “Buy Now”, User transmits to Company a binding offer to conclude such Subscription Agreement. The Subscription Agreement is an independent contract between the Client and the Company along the Contract of Use for the
2.3 Each User who registers for the Client must have a sufficient power-of-attorney to act on behalf of the Client. A User’s binding offer for conclusion of a Contract of Use according to Section 2.1 above is accepted by Company sending a confirmation email to the Company is entitled to refuse acceptance of the offer without giving reasons.
2.4 Access to the Website and/or App and usage of advinda Investor Cloud depends on prior registration. User shall provide required information, as set out on the Website and/or App, and individual login data which are password-protected. User is obliged to keep its login data and passwords confidential. User is also obliged to prevent unauthorised use of its login data and passwords by third parties. If Client becomes aware of any unauthorised use of login data or passwords, Client shall immediately inform Company thereof, and Company shall be entitled to block access to the Website/App and, as the case may be, advinda Investor Cloud until unauthorised use has terminated. Client shall be liable for any unauthorised use of login data and/or passwords negligently or wilfully caused by a Client’s
3. PRICES AND PAYMENT TERMS
3.1 While the use of the Website and/or App is free of charge, usage of advinda Investor Cloud is subject to payment of the applicable subscription fees including VAT/sales tax (where applicable) as further set out on the Website and/or App and depending on the respective modules (data packages) and the chosen amount of user licences. The applicable subscription fees as set out at the time of conclusion of the Subscription Agreement shall apply for the agreed subscription term. Company reserves the right to adapt such fees. In case such adaption is necessary during the subscription period, Client will be informed thereof by written notice 1 month prior of the adaption coming to effect and shall have the right to terminate the Subscription Agreement within 2 weeks upon receipt of notice.
3.2 Client is obliged to pay the respective subscription fees for the agreed term in advance by way of a payment method offered on the Website/App. In case the payment could not be completed successfully or there is a payment delay, Company is entitled to block access to the advinda Investor Cloud until payment has been completed
3.3 advinda invoices will be issued and sent electronically to Client. Client may object to electronic invoicing and inform advinda that hardcopy invoices are required. In such case Client will bear a handling fee of EUR 10.00 per invoice and the postal costs for the transfer of hardcopy invoices. Postal costs will be standard prices of the Deutsche Post AG, unless otherwise agreed with the Client.
3.4 In case the Company and the Client agreed upon a fee back guarantee (or similar advantages) for the subscribed licenses, Company shall reimburse the subscription fees according to the terms and conditions of the guarantee as set forth on the Website/App.
3.5 If (i) notwithstanding the manner in which any payment to Company is reported, there is a tax liability of Company as a result of its receipt of a payment in a jurisdiction other than the jurisdiction Company is tax resident in or (ii) any deduction or withholding is required by law to be made from any payment to Company, such payment shall be appropriately adjusted so that the amount of such payment, reduced by the amount of all taxes payable with respect to the receipt thereof or the amount of all deduction or withholding required by law with respect to such payment, as applicable (in each case, taking into account all correlative tax benefits resulting from the payment of such taxes), shall equal the amount of the payment which Company receiving such payment would otherwise be entitled to receive.
4. AVAILABILITY OF ADVINDA INVESTOR CLOUD AND RESERVATION OF RIGHT OF MODIFICATION
4.1 Within the scope of its technical and organisational possibilities, Company uses commercially reasonable efforts to provide 98.5% – 99% average availability of the Website and App (including the advinda Investor Cloud) per calendar The decisive point of measurement for such average availability is the point of connection of advinda Investor Cloud servers with the internet.
4.2 Company performs all maintenance works and selection procedures regarding the content of the Website, App and the advinda Investor Cloud with due diligence and reserves the right to make modifications with respect to the content of advinda Investor Cloud in so far as they are necessary to correct any errors or deficiencies, or to update or complement the content. Company also uses its commercially reasonable efforts to continuously adapt the Website, App and the advinda Investor Cloud to the current technological requirements and therefore reserves the right to make modifications necessary to adapt the Website, App and the advinda Investor Cloud to the state of the art as well as to optimise it, especially in order to enhance its user-friendliness.
5. COOPERATION DUTIES
Client shall take care that all the technical requirements are met in his sphere of influence so as to enable and maintain access to Website, App and, as the case may be, advinda Investor Cloud.
6. CLIENT’S RIGHTS OF USE AND CONTRACT PENALTY
6.1 Subject to the Terms and Conditions stated herein, conclusion of a Subscription Agreement, full payment of any subscription fees due and for the term of the Subscription Agreement, Company hereby grants to Client a limited, nonexclusive, non-sub-licensable, non-transferable right to use the advinda Investor Cloud module(s) agreed upon in the Subscription Agreement for the agreed number of User’s. For each User designated to access an advinda Investor Cloud module, one license is required. Client may use subscribed licenses for Client’s Users but may also allow Users of another Client to use the licenses, if they are in the same Team as the Client (see Section 6.9 below). Client may at any time, at his own discretion, revoke such right of other Team Client must not sell, distribute, rent or make available in any other way advinda Investor Cloud or parts thereof to third parties.
6.2 The right to use advinda Investor Cloud and the information contained therein shall include the right to search in, read and access the set of data for which respective subscription fees were paid within the scope of the Website’s and/or App’s functionalities. Clients may only use advinda Investor Cloud and the information contained therein to address institutional investors for the purposes of their investment campaigns within the functionalities of the Website/App. Any reproduction or any other sort of exploitation of advinda Investor Cloud in its entirety or of individual parts of it is prohibited. Any permanent archiving of downloaded data from advinda Investor Cloud is prohibited, unless such archiving is required by mandatory
6.3 Company reserves the right to implement adequate technologies (such as e.g. watermarking) so as to safeguard Database and parts thereof against any sort of misuse and violation of any of the rights of use stated herein. By way of adopting such protective mechanisms, the misuse and the person responsible will be identified, and respective measures will be taken by Company (see further sec. 6.6).
6.4 Client must not sell, distribute, rent or make available in any other way the Website or App or any parts thereof to third parties. Any information uploaded by Users should be thematically appropriate. Any uploading or creation of content that is illegal, pornographic, glorifying violence, discriminating, infringing against common decency, anticompetitive, insulting, disparaging, libellous and/or injurious to the rights of third parties (for example, trademark rights, copyrights, personality, and/or image rights), or includes false factual claims about the Website or App, are prohibited. Furthermore, it is expressly forbidden for Users to initiate contracts for actions prohibited by law or violating common decency (such as money laundering, fraud, drug dealing, terrorist acts etc.) or sexual services. Any actions that might impair the contents and services of the Website or App or can make these unfit for use, are also prohibited. This applies in particular to the introduction of malicious software, the mass and unsolicited sending of content (so-called spamming) as well as to actions which are aimed at creating fake profiles, or registering one User multiple times, manipulating search functions as well as manipulating, blocking and/or modifying contents of other Users.
6.5 Client shall not attempt to gain unauthorized access to Website, App or advinda Investor Cloud or its related systems or networks. Client shall not permit direct or indirect access to or use of Website, App or
advinda Investor Cloud in a way that circumvents a contractual usage limit, or use Website, App or advinda Investor Cloud to access or use any of Company’s intellectual property except as permitted under this Terms and Conditions. Client shall not copy Website, App or advinda Investor Cloud or any part, feature, function or user interface thereof and shall not access Website, App or advinda Investor Cloud in order to build a competitive product or service. Furthermore, Client shall not reverse engineer Website, App or advinda Investor Cloud, unless permitted by mandatory law.
6.6 In case of suspicion of misuse or violation of any of the rights of use stated herein, in particular but not limited to Section 6.1 to 6.3, Company shall be entitled to immediately block User’s access to Website, App and, as the case may be, advinda Investor Cloud until the circumstances are clarified. If such suspicion is confirmed, Company shall be entitled to terminate the Contract of Use and, as the case may be, Subscription Agreement with immediate effect and without complying with the notice period. If Client violates Section 1.2, Company may, at its own discretion, either terminate the Subscription Agreement for cause (i,e. with immediate effect), or withdraw (“zurücktreten”) from the Subscription Agreement. In case Company terminates the Subscription Agreement due to a violation of Section 1.2, possible unused license fees will not be reimbursed by Company to Client. Further rights on the part of Company remain
6.7 In the event Client negligently, grossly negligently or willfully fails to abide by Section 6.1, Section 6.2, Section 6.3 and/or Section 6.4, Company may claim a contract penalty determined by Company at Company’s reasonably exercised discretion. In case of conflict such contract penalty shall be reviewed by the competent court. In the event Client negligently, grossly negligently or willfully accesses or uses the advinda Investor Cloud as a Placement Agency according to Section 1.1, Company may claim a contract penalty in the amount of EUR 250.000,00. Section 348 German Commercial Code (“HGB”) is not applicable. This contractual penalty will not be charged against any paid subscription fees. Company shall also be entitled to claim the contract penalty in addition to performance. Payment of a contractual penalty will be charged against any claim for damages.
6.8 Each User may send invitations to register to the Website and/or App to third parties via the Website and/or App. Client hereby ensures that Client’s Users are entitled to send such invitations to third parties.
6.9 If a Client allows the User of another Client to use a license as described in Section 6.1, such license may only be used subject to the restrictions of this Contract of Use and the Subscription Agreement. For the avoidance of doubt, if a license terminates, the right to use the license terminates regardless of the User of the subscribing Client or the User of another Client uses the license at that moment.
6.10 Company’s Website and App also offers Users the possibility to connect with other Users in customized networks (hereinafter called “Teams”). A User may enter a Team by joining an existing Team or creating a new Team and inviting other Users. Every Team member has access to all Custom Data uploaded by other Users in the same Client must ensure that Client’s Users are entitled to upload, use and, as the case may be, share with others Custom Data via Website and/or App. User hereby agrees that his own Custom Data is shared with other Team members and that he has sufficient rights to share his Custom Data with other Team members. Client also agrees that Client’s Users will not unlawfully process, save or transfer other Team member’s Custom Data that is available to Users in their position as a Team member. Client ensures that the Users that act on his behalf are entitled to invite other Team members to his team. If a User leaves a Team, the User no longer has the right to use the license of other Team members and no longer has access to any Custom Data from other Team members. However, the Custom Data of the Team member that has dropped out of a Team can still be accessed and used by the remaining Team members (e.g. existing tasks can be completed by other Team members).
7. INTELLECTUAL PROPERTY
7.1 Client acknowledges and agrees that Website, App and advinda Investor Cloud are protected by intellectual property laws established by Company and/or its licensors.
7.2 Trademarks, company logos, service marks or any proprietary notices or other characteristics serving identification of Company may not be removed or changed either in electronic form or in prints.
8.1 The Contract of Use is concluded for an indefinite period of time and may be terminated by Company with a notice period of 90 days. In case of termination, Company will send an email to the email address provided at the registration. If Client has an active subscription and corresponding license for use and access to the advinda Investor Cloud, such termination of the Contract of Use becomes effective to the end of the subscription period at the earliest. Client may terminate the Contract of Use regarding the Website and App at any time by deleting his account or by deleting the App. In that case, possible unused license fees will not be reimbursed by Company to Client.
8.2 Each Subscription Agreement will automatically end upon expiry of the agreed subscription period. The ordinary termination right of the Subscription Agreement during the agreed subscription period is excluded.
8.3 Both Parties rights to terminate the Contract of Use and/or a Subscription Agreement for cause remain unaffected. Company may also terminate the Contract of Use and a Subscription Agreement according to Section 6.5.
8.4 Upon termination of Contract of Use for any reason whatsoever, Company will block Client’s access to Website and/or App. Upon termination of Subscription Agreement for any reason whatsoever, Company will block Client’s access to advinda Investor Cloud. In both cases, Client must cease to execute any rights of use, immediately.
9. LIMITATION OF WARRANTY AND LIABILITIES
9.1 Company shall use commercially reasonable efforts to ensure completeness of Website, App and advinda Investor Cloud; however, Company cannot guarantee that the information in Website, App and advinda Investor Cloud is always correct and up-to-date at all times.
9.2 Company shall be liable without any limitation only for intent, gross negligence, injury of life, personal harm or injury of health, fraudulent concealment of defects and assumption of guarantees as well as according to the Product Liability Act. Company’s liability for slight negligence is restricted to claims based on violation of a material contractual obligation. Thereby the amount of damages shall be limited to the typical foreseeable damages. Material contractual obligations are such obligations which are to be imposed on Company according to the spirit and objective of these Terms and Conditions or which are essential to facilitate the proper implementation of the contract and upon which Client may regularly rely on.
9.3 Any further liability on the part of Company is excluded. In particular and notwithstanding Company’s liabilities according to Section 9.2, Company shall not be liable without fault for any defects already existing upon conclusion of the Contract of Use (within the meaning of Section 536 a para. 1 alternative 1 BGB).
9.4 If third parties bring a claim against Company related to Client’s actions (in particular related to the upload of Client’s Custom Data), Client will indemnify and hold harmless Company against all damages, losses and expenses of any kind (including reasonable legal fees) related to such claims. Client will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that any of Client’s data infringes or misappropriates such third party’s intellectual property rights, or arising from Client’s use of the Website and/or App or its content in violation of the Terms and Conditions or applicable law (such claim hereinafter referred to as “Claim Against Company”), and Client will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a settlement approved by Client in writing of, a Claim Against Company, provided company promptly give Client written notice of the Claim Against Company, give Client sole control of the defense and settlement of the Claim Against Company (except that Client may not settle any Claim Against Company unless it unconditionally releases Company of all liability), and give Client all reasonable assistance, at Client’s expense.
10. DATA PROTECTION
10.1 Company complies with data protection regulations. Client is hereby informed that personal data, e.g. address information, are electronically stored and used for documentation and accounting purposes. Personal data will be treated as confidential and will be passed on to third parties only in so far as data protection regulations give allowance hereto or the data subject has agreed hereto. Company’s data protection declaration applies which is available on the
10.2 The transmission of personal data via the advinda Investor Cloud requires, among others, definite proof of professional interest. With regard to the personal data contained within advinda Investor Cloud, Client agrees to produce plausible evidence of this professional interest. Company reserves the right to examine proof of professional interest, in a particular case, without giving reason. For the avoidance of doubt, Client shall be held liable for any wilful and/or (grossly) negligent breach of data protection regulations.
10.3 Client may only use personal data contained within advinda Investor Cloud for the original purpose for which it was intended and agreed upon. Furthermore, Client is obliged to bind staff, which may need access to confidential data, to utmost secrecy and must ensure that staff only uses advinda Investor Cloud for the original purpose for which it was intended and agreed upon.
10.4 In order to make the supply chain of personal data transparent, Client ensures that the contact person of the respective investor company recognises the original data source, when contacting the respective investor company. Therefor, Client shall convey following details to the contact person: “Your contact details were obtained from DC Placement Advisors GmbH, Brienner Strasse 14, 80333 Munich, Germany”.
11. FINAL PROVISIONS
11.1 These Terms and Conditions shall be governed by and interpreted in accordance with the laws of Germany. Should these Terms and Conditions be translated into a language other than English, the English language version shall prevail. The UN Convention of Contracts for the International Sale of Goods is excluded. Exclusive place of performance and jurisdiction shall be Munich,
11.2 Any changes and modifications to these Terms and Conditions require written form. This applies also to changing of this requirement of written form.
11.3 Should any provisions of these Terms and Conditions be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and purpose of such provision.
(June 30, 2021)