1.1 We, the Tapline UG (haftungsbeschränkt) (hereinafter: “Tapline”), with registered office in Berlin, Germany registered with the Commercial Register of the Local Court of Charlottenburg, Register Number: HRB 231748, operate an online platform (hereinafter: “Platform”) under the website tapline.io.
The Platform is available only to companies (i.e. legal entities or partnerships having legal capacity, that are acting in the performance of their commercial or independent professional activities when concluding legal transactions) (hereinafter: “Companies”) that are registered with Tapline. Natural persons and/or consumers within the meaning of Section 13 German Civil Code (Bürgerliches Gesetzbuch – “BGB”), i.e. natural persons who conclude legal transactions for purposes which cannot primarily be attributed either to their commercial or their independent professional activities, are excluded from using the Platform.
On the Platform, Companies that have concluded subscription agreements with their consumer customers or corporate customers (all customers hereinafter together: “Obligors“) for the regular delivery of goods or the provision of services (subscription agreement hereinafter: “Subscription Agreements”) and who wish to sell and assign the receivables existing and arising in the future from these Subscription Agreements (receivables hereinafter: “Subscription Receivables“) for own refinancing purposes (such Companies hereinafter referred to as “Seller” or “Sellers”) can publish sales requests for the sale and assignment of designated Subscription Receivables selected by them from their portfolio of Subscription Receivables including the offer for assignment of additional Subscription Receivables as security (hereinafter: “Sales Requests”) for the purpose of obtaining non-legally binding purchase bids of a prospective purchaser. A subsidiary of Tapline, the Tapline Servicing GmbH, with its registered office in Friedrichsdorf, Germany (hereinafter: “Prospective Purchaser”) may submit in its own discretion non-legally binding purchase bids on the Platform on Sales Requests published by Sellers. If a Seller wishes to accept the purchase bid of the Prospective Purchaser, the Seller can conclude with the Prospective Purchaser,
(i) with regard to the Subscription Receivables offered for the sale and assignment as well as to Subscription Receivables offered for assignment by way of security underlying its Sales Request, and
(ii) taking into account the conditions of the purchase bid,
In order to be able to use the Platform and its Services, a Seller must, prior to the first use of the Platform and its Services, cumulatively fulfil all of the requirements set out in this paragraph 3:
3.1 Conclusion of the Platform Usage Agreement
3.2 Personal conditions of Sellers for the use of the Platform and its Services
Only Companies cumulatively fulfilling the following requirements are allowed to use the Platform and its Services:
The company shall
– be a corporate entity, not a natural person nor a consumer within the meaning of Section 13 BGB;
– be incorporated in a country admitted by Tapline for the use of the Platform;
– not be subject to immunity from jurisdiction and/or enforcement action;
– not be a public entity, including, but not limited to, a federal, state, central, governmental or local public entity or agency or a public administration entity;
– hold all necessary licences and have all necessary approvals in place in order for it to carry out its business as it is carried out;
– not be in breach or having breached any any economic or financial sanctions law and/or regulation, trade embargo, prohibition, restrictive measure, decision, executive orders or notices from any regulator implemented, adapted, imposed, administered, enacted and/or enforced by the United Nations, the United Kingdom, the European Union and its member states, the United States of America, the Republic of Singapore, Hong Kong and any authority acting on behalf of any of them (including without limitation, the Office of Foreign Assets Control of the US Department of the Treasury, the US Department of State, the Monetary Authority of Singapore, His Majesty’s Treasury and the UK tax, payments and customs authority), hereinafter: “Sanctions Law”,
– not having been convicted of and not being under investigation for corruption, bribery, fraud or any other criminal offence;
– have an Annual Recurring Revenue (“ARR”) of at least € 96.000,00 per year and with a maximum ARR of € 5.000.000,00 per year.
When registering, a Seller must provide Tapline and/or any service provider of Tapline engaged by Tapline in order to gather the necessary data, information or proof required by Tapline for registration with at least the following data, information and proof:
(1) Company/Company name/designation of the Seller, commercial register number, business address, VAT identification number, telephone number, email address, IBAN/BIC/name of the bank account to be used in relation to the Platform and to be used for payments in case that a Receivables Purchase Agreement between Seller and the Prospective Purchaser will be concluded (hereinafter: “Bank Account”), first names/surnames of all of the Seller’s legal representatives, place/date of birth/nationality/residential address of all of the Seller´s legal representatives (the data stated in this paragraph 3.3 a) aa) (1) are hereinafter referred to as “Company Data”);
(2) information on which software the Seller uses in relation to the management of its Subscription Receivables (hereinafter: “Subscription Manager”);
(3) information on which accounting software the Seller uses in relation to the management of its Subscription Receivables (hereinafter: “Accounting Software”); and
(4) all data and information needed by Tapline in order to fulfil legal requirements due to Anti-Money-Laundering Laws (AML) and/or the Know Your Business (KYB) processes/requirements of Tapline (e.g. Company/Company name/designation of the Seller, commercial register number, business address, ultimate beneficial owners list as well as identity checks on each ultimate beneficial owner).
In addition to the Seller’s provision of complete and correct information in the Registration Form, the Seller is obliged to provide Tapline and/or any service provider of Tapline engaged by Tapline in order to gather the necessary proof required by Tapline for registration of the Seller at least with the following proof:
– copies of valid official photo IDs of all legal representatives of the Seller (e.g.: passport, ID card);
– address proof of all legal representatives of the Seller;
– a list of all authorised signatories of the Seller;
– proof for the existence of the Bank Account (e.g. current confirmation of the credit institution holding the account, copy of current account statements);
– current extract from the applicable Commercial Register, the Partnership Register or any other public register where the Seller is incorporated, as well as a list of its shareholders; and
– any reasonable proof needed by Tapline in order to fulfil legal requirements due to Anti-Money-Laundering Laws (AML) and/or the Know Your Business (KYB) processes/requirements of Tapline (e.g. Company/Company name/designation of the Seller, commercial register number, business address, ultimate beneficial owners list as well as identity checks on each ultimate beneficial owner).
Within the registration process the Seller receives a personal user account from Tapline (hereinafter: “User Account”) and the following access data: “user name” (equal to the email address provided by the Seller with the registration process) and “password” (hereinafter: “Access Data”). The Seller can change the password after the conclusion of the Platform Usage Agreement on the Platform. The User Account and Access Data are solely for the Seller’s use. The Seller undertakes not to make its User Account and its Access Data accessible to third parties. The Seller is liable to Tapline and/or to the respective Prospective Purchaser as third-party beneficiary contract (Section 328 subsection (1) BGB) for damages in the event of a culpable violation of the respective, above-mentioned obligation to cease and desist.
3.4 Obligation of the Seller to provide access to Bank Account, to Subscription Manager, to Accounting Software and additional data, information, documentation
In case that Tapline does not receive all required Bank Account Data, Subscription Manager Data and Accounting Software Data as set out above, the Seller may not publish Sales Requests on the Platform.
3.5 Obligation of the Seller to update data, information and to provide proof; Subscription Agreements, banking, accounting and tax data/information
3.6 Special obligations of Sellers; consequences of violations of conditions for use
5.2 Upon use of the first Service, Tapline endeavors, within the scope outlined below in paragraphs 5.2 to 5.4, to ensure access to the Platform with an average annual availability (subject to the provisions in paragraphs 5.3 and 5.4 below) of 95%. Availability at all times is, however, not the object of the performance owed. In particular necessary maintenance work, compelling security reasons and events, which are outside the sphere of Tapline (e.g. malfunctions in public communications networks, power failures, failures of subnode computers or similar events), can lead to disruptions or to the temporary cessation of Services of Tapline and accessibility of the Platform also below the average availability of 95% on average, without this constituting a contractual breach of duty by Tapline, unless Tapline has culpably caused such a contractual breach of duty. Access to the Platform and its availability for the Seller depends in particular also upon the Seller’s own technical equipment and on data transmission on the internet by third parties.
5.3 Tapline provides Services exclusively based on the technical status of the Platform at the time of conclusion of the Platform Usage Agreement and the technical status of the Platform and the internet existing at that time and at the time of the specific use of the Service and the respective legal and commercial framework conditions for its use within the Federal Republic of Germany.
5.4 Tapline may at any time temporarily restrict or stop access to the Platform, restricting the availability in principle owed according to paragraph 5.2 above, if and insofar as this is absolutely necessary with respect to the security or integrity of the servers of Tapline or to implement mandatory technical measures to maintain the contractual performance, also with respect to other Sellers. Restriction of the Platform access may be necessary in particular to protect against attacks from the internet (e.g. in the case of so-called “denial of service” attacks) and is admissible in such case, even if this lowers the annual average availability according to paragraph 5.2 above. Tapline draws attention here to the fact that Tapline secures its systems against unauthorised access to the data stored by Tapline by third parties exclusively with the security systems respectively available at Tapline and that absolute protection against third-party attacks is not possible according to the current state of the art and is also not owed by Tapline.
6.1 Publication of Sales Requests on the Platform
– the Seller must provide the Bank Account Data, the Subscription Account Data, the Accounting Data and all information, data and documents required by Tapline for the contractually necessary assessment and/or analysis of the business of the Seller and/or the Subscription Receivables to be offered by the Seller within the Sales Request Publication to Tapline;
– object of the Sales Request is the sale and the assignment of future, monthly Subscription Receivables of the Seller that exist and arise in a period of at least six months starting as set out in the particular Receivables Purchase Agreement to be concluded separately between Seller and Prospective Purchaser;
– the Seller offers to the Prospective Purchaser in its Sales Request together with Subscription Receivables offered for sale additionally Security Receivables within the meaning of paragraph 6.1 d) below for assignment by way of security;
– each Subscription Receivable offered to the Prospective Purchaser has not yet been published by the Seller on the Platform as the object of a Sales Request;
– each Subscription Receivable being part of a Sales Request, whether as Subscription Receivable offered for sale and assignment or offered as Security Receivable within the meaning of paragraph 6.1 d) below must fulfil all quality requirements (Beschaffenheit) as set out in paragraph 6.1 c) below.
Eligible Obligors shall only be Obligors of Subscription Receivables (“Eligible Obligors“). An Eligible Obligor is an Obligor who cumulatively meets at least all of the following requirements and criteria:
(1) The Obligor
(a) is a customer of the Seller
(b) is a private limited liability company, a publicly listed company or a limited liability partnership or other type of incorporation, an individual consumer or a natural person;
(c) is not a public entity or corporation, including but not limited to a federal, state, central, governmental or local public entity or corporation or agency or a public administration entity;
(d) is incorporated in Germany or any other jurisdictions approved by Tapline;
(e) is not subject to immunity from any jurisdiction and/or from enforcement action;
(f) is not an agent of the Seller;
(g) is not a direct or indirect shareholder or any other affiliated or related company of the Seller;
(h) has been identified and verified by the Seller, to the extent required by law, in compliance with all applicable statutory laws and provisions regarding Anti Money Laundering,
(i) has all relevant licences, approvals and authorisations to carry out its business as carried out;
(j) has not breached any Sanctions Law and is not subject to any sanctions under any applicable Sanctions Law;
(k) has not been convicted of corruption, bribery, fraud or any other criminal offence, and the Seller is not aware of any ongoing criminal investigation; and
(l) has at no time failed to pay to the Seller when due and on time any payment obligation payable by it to the Seller under any Subscription Agreement.
(2) There is an effective Eligible Subscription Agreement between the Seller and the Obligor (see (bb) below).
(3) The Obligor is not an Obligor who, after the conclusion of the Eligible Subscription Agreement (see (bb) below), has been granted discounts on payment obligations under the Eligible Subscription Agreement to by the Seller and has not been granted an extension of existing payment periods by the Seller.
(4) The Obligor
(a) has in the past always been accessible/trackable by the Seller at the address and contact details provided by the Obligor; and
(b) has not asserted any claims against the Seller in the past for any breaches of performance obligations under the respective Eligible Subscription Agreement (see (bb) below).
(5) From an objective point of view, there is no indication for the Seller that a respective Obligor of an Eligible Subscription Agreement has entered into such agreement with the Seller with fraudulent intent.
Subscription Receivables shall only arise from Eligible Subscription Contracts (“Eligible Subscription Agreements“). Eligible Subscription Agreements are Subscription Agreements that cumulatively satisfy at least all of the following requirements and criteria:
(1) The Subscription Agreement has been validly and enforceable entered into not only verbally but based on a contract in text form or writing between the Seller and an Eligible Obligor, in compliance with all applicable laws, for the regular supply of goods or the provision of services by the Seller in return for ongoing payment obligations by the Eligible Obligor.
(2) The Subscription Agreement
(a) is validly in place, i.e. neither the Seller nor the respective Eligible Obligor has challenged, terminated, revoked or rescinded the Subscription Agreement or otherwise declared to the other party that it wishes to terminate the Subscription Agreement or otherwise terminated the Subscription Agreement;
(b) has always been performed by the Seller in relation to the Eligible Obligor in accordance with the Seller’s contractual obligations under the Subscription Agreement;
(c) does not contain any agreements that violate statutory provisions (in particular, to the extent applicable, provisions of the GDPR or statutory provisions on consumer protection and distance selling laws);
(d) does not contain any prohibitions and/or restrictions on assignment (i.e. all claims of the Seller against the Eligible Obligor arising out of or in connection with the Subscription Agreement may be assigned by the Seller freely, validly and without a requirement for prior consent of the Eligible Obligor);
(e) allows the Seller to transfer all personal data within the meaning of Article 4 No. 1 of the GDPR – also in relation to an Eligible Obligor – to third parties in compliance with applicable data protection regulations;
(f) does not contain any confidentiality agreement that could affect the sale or enforcement or collectability of the Subscription Receivable or the creation or enforceability of a first priority security interest in the Subscription Receivable; and
(g) shall be governed exclusively by the laws of the Federal Republic of Germany, this also applies to any claim against the Eligible Obligor arising therefrom, if not otherwise agreed between the Seller and Tapline.
Subscription Receivables shall only be Eligible Subscription Receivables (“Eligible Subscription Receivables“). Eligible Subscription Receivables are existing and future Subscription Receivables that cumulatively meet at least all of the following requirements and criteria:
(1) An Eligible Subscription Receivable shall
(a) have arisen or arise in the ordinary course of the Seller’s business out of or in connection with an Eligible Subscription Agreement; an Eligible Subscription Receivable shall be solely owed by an Eligible Obligor;
(b) be solely owned by the Seller (the Seller must be the sole holder of the receivable claim); and
(c) be validly existing, freely assignable, free from defences and objections of the Eligible Obligor and unencumbered and free from third party rights.
(2) An Eligible Subscription Receivable shall in particular
(a) Denomination: be denominated in EUR, payable in EUR and not convertible into any other currency;
(b) Documentation/invoices: if requested by Tapline or the Prospective Purchaser, be verifiable by the Seller at any time through appropriate documentation (Subscription Agreement, invoices in compliance with applicable VAT and other applicable tax regulations) and digital subscription data (e.g. digital payment instructions, invoice ID/number, date of payment, name and address of Obligor); invoice ID/numbers of Eligible Subscription Receivable must be unique and must not refer to other Eligible Subscription Receivable against the same Eligible Obligor;
(c) No Default: be owed by an Eligible Obligor who has not been in default of payment in respect of the relevant Eligible Subscription Agreement at any time in the past and is not in default of payment in respect of the Subscription Receivables to be sold;
(d) Freely assignable: be freely and validly assignable without a requirement for prior consent of the Eligible Obligor
(e) No defences/objections: be free from defences and objections of the Eligible Obligor (i.e. in particular undisputed; no counterclaims, no right of set-off, no rights of retention or other counter rights of the Eligible Obligor);
(f) No third party rights: be unencumbered as well as free from any third party rights (e.g. no sale to third parties, no other assignment to third parties, no pledge to and no lien in favour of third parties, no seizure or other security interests of third parties);
(g) No withholding/retention: be free from any statutory rights of retention or withholding of or in respect of the relevant Eligible Obligor (such as withholding tax);
(h) No public procurement: be originated in a field other than public procurement;
(i) Granting of security: always be offered by the Seller to the Prospective Purchaser together with sufficient Security Receivables within the meaning of paragraph 6.1 d), which, for the avoidance of doubt, since Security Receivables are also Subscription Receivables, must also be of a quality set out in this paragraph 6.1 c).
(i) does not exist or does not arise, because the underlying Subscription Agreement has been validly challenged, revoked, cancelled or otherwise terminated by the relevant Obligor prior to the accrual of the Subscription Receivable; or
(ii) is not paid or not paid in full by the relevant Obligor when due; or
(iii)) does not exist or does not arise, because the underlying Subscription Agreement is invalid or has been validly challenged, revoked, cancelled or otherwise terminated by the Seller; or
(iv) is not of the quality (Beschaffenheit) required pursuant to paragraph 6.1 c) above,
(each event mentioned above hereinafter: “Security Event”).
6.2 Selection of the Prospective Purchaser bid; conclusion of Receivables Purchase Agreements
8.1 Tapline shall be entitled to a claim for a payment of a remuneration to be paid by the Seller for each Receivables Purchase Agreement concluded between the Seller and a Prospective Buyer for a Subscription Receivable published on the Platform by the Seller within the scope of a Sales Request (“Remuneration”). The amount of the remuneration respectively incurred shall be 1% on the respective Receivables Purchase Agreements notional amount of purchased Subscription Receivables for the first transaction, 0,75% for the second transaction, 0,5% for the third transaction and 0,25% for the fourth and every following transaction.
8.2 In addition to the Remuneration, the Seller shall owe Tapline the applicable statutory value added tax incurred on the respective due date.
8.3 The Remuneration shall be due and payable within three calendar days of receipt of the invoice by the Seller.
9.1 It is incumbent upon the Seller alone to decide whether and with whom the Seller wishes to enter into a Receivables Purchase Agreement using the Platform. No rights shall arise for Sellers vis-à-vis Tapline or vis-à-vis the Prospective Purchaser from the conclusion of the Platform Usage Agreement to conclude a Receivables Purchase Agreement.
9.2 Tapline shall owe neither the validity of Receivables Purchase Agreements concluded between Sellers and Prospective Purchasers nor the performance or fulfilment of such contracts by the Prospective Purchaser and Tapline does not accept any liability on that account.
10.1 The contractual and statutory liability for damages and reimbursement of expenses of Tapline, for whatever legal reason, and the liability of the legal representatives and vicarious agents of Tapline is excluded respectively limited as follows:
“Material contractual obligations” are obligations, the fulfilment of which define the contract and on which the Seller may rely.
10.2 The above-mentioned limitation of liability shall not apply (i) in cases of mandatory statutory liability (especially under the German Product Liability Act (Produkthaftungsgesetz), (ii) if and insofar as Tapline has assumed a guarantee or a procurement risk (Section 276 (1) BGB), (iii) in respect of injury to life, limb and/or health culpably caused, also by representatives and vicarious agents, as well as (iv) in the case of default with respect to a fixed performance date.
10.3 The Seller is obliged to take appropriate measures to avert and mitigate damage. Section 254 BGB (contributory negligence) remains unaffected.
10.4 There is no connection between the reversal of the burden of proof and the foregoing provisions.
10.1 The Platform Usage Agreement for use of the Platform has an indefinite term. Ordinary termination can be effected by the Seller and/or by Tapline in each case by giving notice of two weeks to the end of a calendar month.
10.2 The right of termination for good cause remains unaffected.
10.3 Notice of termination shall only be valid when given in writing or text form (e.g. email, telefax or letter).
11.3 Exclusive place of jurisdiction if the Seller is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch – “HGB”) is the registered office of Tapline. If this condition is met, Tapline shall, however, also have the right to assert claims against the Seller at its general registered office.
Status: December 2022