Terms of Use of the Tapline Online Platform for the Sale of Receivables

 

For companies that wish to publish sales requests for the sale of receivables on the Tapline Online Platform tapline.io as sellers the use of the Tapline Online Platform is subject to the following terms of use (hereinafter: “Terms of Use”):

 

  1. Summary description of the business model; scope of the Terms of Use

1.1 We, the Tapline GmbH (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, 

     a receivables purchase and assignment agreement with security agreement – under condition precedent – (hereinafter: “Receivables Purchase Agreement”). Object of such Receivables Purchase Agreement is the sale and assignment of the Subscription Receivables offered for purchase and the assignment as well as of Subscription Receivables offered as security from the Seller to the Purchaser as set out in the particular Receivables Purchase Agreement. The assignment is made by way of silent assignment, i.e. as long as the assignment is not disclosed to the relevant Obligors the Seller may continue to collect the Subscription Receivables from the Obligors when due pursuant to the terms of the particular Receivable Purchase Agreement, paying out all collected payments as instructed by the Prospective Purchaser. The Prospective Purchaser can accept the Seller’s offer in a legally binding manner by separate declaration to the Seller. Pursuant to the Receivables Purchase Agreement the Prospective Purchaser will be entitled at any time to resell and assign in its own discretion Subscription Receivables acquired from the Seller to any third party (e.g. to securitisation companies or credit institutions domiciled in a member state of the European Union). If a Receivables Purchase Agreement is concluded between the Seller and the Prospective Purchaser using the Platform, Tapline shall receive a remuneration from the Seller according to these Terms of Use.

Tapline is not a financial institution and not a financial services provider according to Section 1 of the German Banking Act (Kreditwesengesetz). Tapline provides in this respect neither banking operations nor financial services. Tapline does not conclude Receivables Purchase Agreements with Sellers. The services of Tapline are limited to the provision of the Platform and the brokering of Receivable Purchase Agreements between Sellers and the Prospective Purchaser. The manner in which the Platform specifically functions, the conditions on which the Platform can be used by Sellers and the rules that apply to this follows exclusively from these Terms of Use, unless the Terms of Use are subject to mandatory deviating law (e.g. mandatory statutory provisions or individual agreements according to Section 305b BGB).

1.2 These Terms of Use apply exclusively to the entire business relationship between Tapline and Sellers registered on the Platform that use the services offered by Tapline within the meaning of these Terms of Use, especially if Sellers use the Platform to publish Sales Requests for Subscription Receivables. Upon registration of the Seller on the Platform, these Terms of Use shall become an integral part of the Platform Usage Agreement pursuant to paragraph 2.1 below and an integral part of the business relationship between Tapline and the Seller (for the registration process, see paragraph 3.3 below). If the Terms of Use of Tapline are included in the business relationship with a Seller, they shall also apply to all further legal relationships of that business relationship between the Seller and Tapline, unless otherwise expressly agreed. Deviating General Terms and Conditions of the Seller shall apply only if and to the extent that Tapline expressly acknowledges them; otherwise they shall be rejected. 

  1. Object of the contract; charges; changes to the Terms of Use

2.1 Companies that wish to use the Platform as Sellers must at all times fully comply with the requirements for use of the Platform according to paragraph 3 of these Terms of Use and conclude a Platform Usage Agreement free of charge for use of the Platform in advance with Tapline according to paragraph 3.1 of these Terms of Use (hereinafter: “Platform Usage Agreement”). Based on the Platform Usage Agreement, the Seller can, when using the Platform according to these Terms of Use, use all services offered by Tapline within the meaning of paragraphs 4, 5 and 6 (all services offered within these Terms of Use are hereinafter referred to as “Services”). Use of Services by the Seller is free of charge, unless they are designated as against payment in these Terms of Use. 

2.2 Tapline reserves the right to change the Terms of Use and the Services offered by Tapline in the event of objective reasons at its reasonably exercised discretion (Section 315 Subsection (1) BGB), that is, taking into account mutual interests. This is namely the case in the event, at the time of conclusion of the Platform Usage Agreement, of respectively unforeseeable (i) changes in the relevant legislation or change in relevant judicial decisions, (ii) necessary technical changes to provide the Service according to the Platform Usage Agreement, (iii) additions to the Services offered on the Platform or (iv) changes in third-party services linked to the Platform, which impact on the Platform and the Services to be provided according to the Platform Usage Agreement. The changes can extend to the scope of the Service, the possibility of using it and the obligation to pay for it as well as to contractual deadlines insofar as the Seller benefits with the change from reasonable compensation for any disadvantages arising as a result of the change and the change in terms of content is not equivalent to the conclusion of a new agreement. The proposed changes shall be notified to the Seller by email and shall enter into force six weeks after receipt of the notification, unless a Seller has objected to a change in whole or in part in writing or by email to Tapline within six weeks of receipt of notification of the change. Tapline shall specifically point out this approval effect to the Seller in the notification of the change. Changes shall not have any retroactive effect on Services used prior to their entering into force. For this reason, Tapline recommends that the Seller stores the version of the Terms of Use provided to the Seller upon registration because personal storage for the Seller at Tapline does not take place. Upon receipt of the notification of the change, the Seller shall be entitled to an extraordinary right of termination without notice for the concluded Platform Usage Agreement. If the Seller objects to the notified changes to the Terms of Use in due time, the previous Terms of Use shall continue to apply. The rights to terminate the Platform Usage Agreement according to paragraphs 10.1 and 10.2 of these Terms of Use remain unaffected by this. 

  1. Requirements to be fulfilled by each Seller prior to the use of the Platform and its Services

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

The Seller must conclude the Platform Usage Agreement with Tapline by acknowledging and accepting the Terms of Use when registering on the Platform. The Seller can at any time, within the scope of availability of the Platform according to these Terms of Use, also before registration, view, download and print out the current Terms of Use on the Platform respectively at tapline.io under the link “Terms of Use” (the link is located at the end of each Platform page) or request them to be send from Tapline at any time free of charge. After conclusion of the Platform Usage Agreement, Tapline will send the Terms of Use agreed upon by email in text form to the Seller. Tapline will not store a Platform Usage Agreement concluded with the Seller for the Seller.

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.

3.3 Registration

Use of the Platform as a Seller according to these Terms of Use is only possible for Companies who registers with Tapline by cumulatively fulfilling all of the following requirements:

  1. a) Registration form

The Seller must complete the registration form provided on the Platform (hereinafter: “Registration Form”) in full and truthfully and provide the completed Registration Form to Tapline according to paragraph 4.1 below of these Terms of Use. The Seller can correct any entry errors in the Registration Form when registering by deleting the data entered by the Seller in the Registration Form and displayed there and entering other data. 

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. aa) Data, information

(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).

  1. bb) Proof 

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).

  1. b) User Account and access data

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

  1. a) The Seller is obliged to provide Tapline on an ongoing basis cumulatively with the following data needed by Tapline for the provision of Services owed by Tapline under the Platform Usage Agreement and for the necessary contract execution:
  2. aa) data from its Bank Account. This includes data regarding the Bank Account itself (account holder name, a list of account holder’s accounts (account number, IBAN)), on transactions regarding the Bank Account (date, merchant or counterparty (partner) name, description (info field), amount) and regarding Balances on the Bank Account (current and available), the aforementioned data hereinafter: “Bank Account Data”. In order to provide the Bank Account Data the Seller is obliged to grant the licensed Account Information Service Provider Nordigen Solutions Limited, with registered office in Riga, Latvia, who provides Account Information Services in the meaning of Article 4 Subsection (16) of the Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 (“Payment services Directive 2”) and who cooperates with Tapline, permission to access to the Bank Account and to process the Bank Account Data to Tapline. Tapline will analyse the Bank Account Data received. At no time, Tapline itself will have access to the Bank Account of the Seller.
  1. bb) data contained in and processed by its Subscription Manager. The Subscription Manager data to be provided from the Seller comprises the following data: subscription ID, subscription product, subscription start date, subscription end date, subscription current start date, subscription current term end, subscription cancel date, subscription status, subscription billing cycle, next payment date, subscription payment method, subscription payment currency, subscription base currency, subscription fixed amount, free trial start date, free trial end date, amount of unpaid invoices, total due amount, unpaid amount due since date, subscription customer ID, subscription customer name, subscription customer address, subscription customer email address (hereinafter: “Subscription Manager Data”). In order to provide the Subscription Manager Data the Seller is obliged to grant Tapline permission to access and access to the Subscription Manager and to process and analyse the Subscription Manager Data. In case that the Seller uses a Subscription Manager that cannot be accessed by Tapline or whose data cannot be processed by Tapline, the Seller may, subject to prior consent of Tapline, provide Tapline with the Subscription Manager Data via another electronic form to be agreed upon.
  1. cc) data contained in and processed by its Accounting Software. The Accounting Software data to be provided from the Seller comprises the following data: Income statement (including at the minimum total income, sales income, total expenses, cost of sales, interest expenses, marketing expenses, wage expenses), balance sheet (including at the minimum total assets, bank liquidity, other liquidities, short term account receivables, prepaid expenses, long term account receivables, other receivables, total liabilities, short term accounts payable, short term loans, taxes payables, interest payables, salaries payables, long term accounts payable, long term loans, deferred income taxes, other accrued expenses, paid-in capital and retained earnings) and cash flow statement (including net income, all non-cash expenses, all increases of working capital and cash flows from financing) (hereinafter: “Accounting Software Data”). In order to provide the Accounting Software Data the Seller is obliged to grant Tapline permission to access and access to the Accounting Software and to process and analyse the Accounting Software Data. In case that the Seller uses an Accounting Software that cannot be accessed by Tapline or whose data cannot be processed by Tapline, the Seller may, subject to prior consent of Tapline, provide Tapline with the Accounting Software via another electronic form to be agreed upon.

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.

  1. b) The Seller is furthermore obliged to provide Tapline at minimum with the following data and information needed by Tapline for the provision of Services owed by Tapline under the Platform Usage Agreement and for the necessary contract execution on a monthly basis respectively as soon as accessible for the Seller, – at Tapline’s discretion – in writing, electronically or in text form: 
  • monthly copies of bank statement excerpts of all of the Seller´s bank accounts, including all account’s transaction from that month,
  • a monthly list of all invoices sent by the Seller to the Obligors regarding the Subscription Receivables
  • monthly management accounts (or other monthly financial accounting reports) including the profit and loss accounts, and 
  • copies of annual or quarterly balance sheets, income statement, tax filings of the Seller.

 

  1. c) Upon request of Tapline, each Seller shall be obliged to immediately provide Tapline with all objectively needed information, data and all documents required by Tapline for the assessment and/or analysis of Subscription Receivables to be offered by the particular Seller for sale and assignment or as security as part of a Sales Request (e.g. personal data on the Obligor, contract data on Subscription Agreements including contract numbers and customer numbers, invoice numbers and invoice data, payment information, copies of Subscription Agreements underlying the Purchase Receivables, other agreements and correspondence with the respective Obligor, invoices), – at Tapline’s discretion – in writing, electronically or in text form.
  2. d) Insofar as a Seller provides Tapline with information containing personal data within the meaning of Article 4 No. 1 of the General Data Protection Regulation (DSGVO) (whether from Obligors, employees of the Seller or third parties) in connection with the performance of this Platform Usage Agreement, the Seller warrants that the data protection requirements for the transfer of such data to Tapline for further processing by Tapline for the purpose of implementing this Platform Usage Agreement are met and that all applicable provisions of the DSGVO are complied with at all times. Tapline will provide legally necessary acts of corporation upon written request of the Seller.

3.5 Obligation of the Seller to update data, information and to provide proof; Subscription Agreements, banking, accounting and tax data/information

  1. a) The Seller is obliged to keep its Company Data, the data provided to Tapline regarding the Subscription Manager and the Accounting Software as well as any other data submitted by the Seller to Tapline up to date on an ongoing basis and to inform Tapline immediately of any changes that have occurred regarding such data and to make corrections to such data immediately (subject to the accessibility of the Platform according to paragraph 5 below) according to the changes that have occurred. If a Seller violates the abovementioned obligations to maintain, inform and/or make data corrections, Tapline shall not be liable for resulting damage. Furthermore, Tapline refers to paragraph 3.6 b) below, as far as such data and information are needed by Tapline for the provision of Services owed by Tapline under the Platform Usage Agreement and for the necessary contract execution.
  2. b) Tapline can require, at any time in the registration process as well as after completion of the registration process during the term of the Platform Usage Agreement, especially if Tapline 
  3. i) has doubts as to the accuracy or completeness regarding data/information or proof submitted by the Seller, or 
  4. ii) if this is necessary for the provision of the Services according to the Platform Usage Agreement by Tapline or the Seller, 

additional needed data/information and appropriate proof from the Seller in respect of the accuracy and completeness of the data/information or proof provided to Tapline. The Seller is obliged in such case to provide the requested date/information and proof to Tapline immediately, accurate, complete and free of charge. The Seller must inform Tapline of any deregistration of the business or changes in relation to the Seller’s business registration immediately in writing or text form. Tapline assumes, however, no obligation to verify the completeness or accuracy of the Seller’s information or the Seller’s proof. Tapline refers to paragraph 4.2 of these Terms of Use.

3.6 Special obligations of Sellers; consequences of violations of conditions for use

  1. a) The Seller is obliged to use the Platform only as intended and only within the scope of purposes permitted by law. The Seller is obliged not to display, offer or disseminate any unlawful content, especially not such content that violates criminal law, personal rights, trademark law, competition law, licensing law provisions, data protection regulations or copyright provisions, on the Platform, not to refer to offers with such content or provide links (hereinafter: “Links” or “Link”) to such web pages. The presentation of erotic, racist, discriminatory, xenophobic, political or unlawful content is not admissible. If individual content violates third-party rights or contains unlawful content for other reasons, the Seller alone shall be responsible for such violation of the law. Tapline accepts no responsibility for content posted by the Seller. Tapline is – unless obligated under applicable statutory law – not obliged to check content provided or published by Sellers to that effect. If Tapline is notified of a violation of the provisions agreed in this paragraph 3.6 a), Tapline is entitled to remove any such unlawful or immoral content, references or Links immediately based on a plausibility check in the event of objective indications without further examination. The Seller is obliged to indemnify Tapline against any and all third-party claims resulting from or relating to the culpable violation of these conditions for use by the Seller. Section 254 BGB (contributory negligence) remains unaffected. This also applies in particular in the event that the Seller culpably posts, publishes or otherwise uses content of an anti-competitive nature and/or such content, to which the Seller does not have the necessary rights to use and/or publish, on the Platform e.g. violating the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb), the German Trade Marks Law (Markengesetz), the German Copyright Law (Urheberrechtsgesetz), data protection regulations (such as the European General Data Protection Regulation – GDPR) or the German Act on Copyright in Works of Visual Arts (Kunsturheberrechtsgesetz). The obligation to indemnify also includes here all usual, reasonable and proven expenses of Tapline for legal defence. Section 254 BGB (contributory negligence) remains unaffected.
  2. b) If the Seller violates the conditions for use stated in this paragraph 3 or fails to fulfil the obligations agreed therein, Tapline shall be free, without previous notification and at its own discretion, to remove content posted by the Seller on the Platform that is not accurate, not complete or unlawful and/or to exclude the Seller’s respective Sales Request from the Platform and to block it and/or delete it immediately after publication on the Platform.
  1. Services of Tapline

4.1 Tapline shall provide exclusively the following conclusively listed Services, unless these are excluded or restricted according to paragraph 4.2 below, to Sellers based on a Platform Usage Agreement concluded with Tapline and according to these Terms of Use:

  • provision of the Platform to registered Sellers for usage pursuant to paragraph 5 of the Terms of Use; and 
  • the Services in connection with enabling the publication of Sales Requests for Subscription Receivables pursuant to paragraph 6 of the Terms of Use.

4.2 In particular the following Services shall not be provided or owed to Sellers by Tapline based on the Platform Usage Agreement according to these Terms of Use:

  • consultancy services, provision of advice or information, banking operations or financial services;
  • legal advice within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz – “RDG”) or tax consultancy within the meaning of the German Tax Consultancy Act (Steuerberatungsgesetz – “StBerG”);
  • verification of the authenticity, completeness and accuracy of particulars, data, information, proof/documents of Sellers or the Prospective Purchaser;
  • verification of the credit standing or identity of the Prospective Purchaser;
  • purchase of Subscription Receivables from Sellers;
  • sale and/or assignment of Subscription Receivables to the Prospective Purchaser; 
  • representation of Sellers or the Prospective Purchaser; 
  • collateralisation or effecting a collateralisation of sales of receivables; 
  • effecting the Receivables Purchase Agreement(s) between Seller and the Prospective Purchaser; and
  • the provision of a guarantee or assumption of a procurement risk within the meaning of Section 276 Subsection (1) BGB for the sale of Subscription Receivables or the conclusion of a Receivables Purchase Agreement between Seller and the Prospective Purchaser.
  1. Provision of the Platform by Tapline to registered Sellers for usage

5.1 Use of the Platform by the Seller requires, apart from fulfilment of all conditions for use stated in paragraph 3, that the Seller has the necessary and appropriate technical means (e.g. computer, internet access, email address) for accessing tapline.io via the internet. Within the scope of the Platform Usage Agreement concluded, Tapline makes the Platform available to the Seller only according to these Terms of Use, with the availability conclusively stated below in paragraphs 5.2 to 5.4 and as at each time actually provided by Tapline (freely selectable by Tapline). Paragraph 5.2 below remains unaffected.

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.

  1. Services in connection with enabling the publication of Sales Requests for Subscription Receivables 

The obligation of Tapline to enable performance according to the Platform Usage Agreement is subject to the complete and cumulative fulfilment of all conditions for use by the Seller according to paragraph 3 of these Terms of Use.

6.1 Publication of Sales Requests on the Platform

  1. a) Sellers can publish Sales Requests for Subscription Receivables selected by them on the Platform according to these Terms of Use and according to standardised parameters specified by Tapline, e.g. according to specified text modules, input or setting options, taking into account data to be provided by the respective Seller. For each Sales Request, Tapline shall allocate a separate, purchase identification number that cannot be changed (“Purchase ID”).
  2. b) Requirements for the publication of Sales Requests on the Platform to be fulfilled and warranted by the Seller before and during the time of the publication on the Platform are in any case that

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. 

  1. c) Subscription Receivables that are the object of a Sales Request of a Seller must fulfil cumulatively all of the following quality requirements (Beschaffenheit):
  2. aa) Eligible Obligors

 

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.

 

  1. bb) Eligible Subscription Agreements

 

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.

 

  1. cc) Eligible Subscription Receivables

 

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). 

  1. d) Security Receivables
  2. aa) Each Sales Request must additionally include the offer of an assignment of further Subscription Receivables by way of security which have the same quality (Beschaffenheit) of Subscription Receivables set out in paragraph 6.1 subsections b) and c) above and which serve as security (hereinafter “Security Receivables”) in the event, that a Subscription Receivable purchased by the Prospective Purchaser from the Seller 

(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”).

  1. bb) The consequence of the occurrence of a Security Event with respect to a Subscription Receivable sold and assigned by the Seller to the Prospective Purchaser pursuant to a Receivables Purchase Agreement will be that the particular Subscription Receivable will automatically be substituted free of charge by way of realisation of security by one or – to the extent necessary in terms of amount – several assigned Security Receivable(s) as new Purchase Receivable (“Substitution of Receivables“).
  2. cc) The required amount of the scope of the Security Receivables to be offered by a Seller with its Sales Request is automatically displayed to the Seller when entering its Sales Request on the Platform. Tapline allocates a security identification number (“Security ID”) for the Security Receivables offered for assignment by way of security in connection with a specific Sales Request. If, in connection with the Sales Request, the Seller does not provide any Security Receivables in the specified scope or with the specified characteristics, the publication of a Sales Request by the Seller on the Platform shall not be possible.
  3. e) Provided that the Seller gives all particulars required for this purpose on the Platform in relation to a Sales Request and includes all the contents of the offer required for this purpose on the Platform in its Sales Request, the Seller can release a Sales Request for publication on the Platform by clicking on the button provided for this on the Platform. 
  4. f) If all requirements for publication of a Sales Request stated in paragraph 6.1. e) above are met, Tapline shall have the right to publish the Sales Request of the Seller on the Platform under the respective Purchase ID and Security ID for the duration of 180 calendar days (“Publication Period”). There is, however, no obligation for Tapline to publish the Sales Request.
  5. g) Tapline reserves the right, exclusively in its own interest, to remove or delete any published sales offer of the Seller for objective reasons (e.g. change in the requirements for Sales Requests) at any time from the Platform or to block access to such sales offers for other Platform users. 
  6. h) The Seller owes and warrants to Tapline as well as vis-à-vis the Prospective Purchaser as a genuine contract in favour of third parties in the meaning of Section 328 BGB (Vertrag zugunsten Dritter) in respect of all Subscription Receivables offered within a Sales Request whether for sale and assignment or as Security Receivable the quality (Beschaffenheit) as set out in paragraph 6.1 c) above.

6.2 Selection of the Prospective Purchaser bid; conclusion of Receivables Purchase Agreements

  1. a) The Prospective Purchaser can submit a legally non-binding purchase bid (“Purchase Bid”) on the Platform during the Publication Period on Sales Requests published on the Platform. The Seller can view a Purchase Bid submitted on its Sales Requests on the Platform and decide whether it wishes to accept the Purchase Bid and if it is willing to conclude a Receivables Purchase Agreement with the Prospective Purchaser based on the conditions of the Purchase Bid. If the Seller decides to accept the Purchase Bid and if it is willing to conclude a Receivables Purchase Agreement with the Prospective Purchaser, the Seller shall confirm this by clicking on the button provided for this purpose on the Platform. After confirmation by the Seller Tapline will make the relevant data necessary to create a Receivables Purchase Agreement, including the Seller’s data, the data of the Sales Request including data regarding Subscription Receivables in question as well as data regarding the relevant Security Receivables (e.g. contract number of the underlying Subscription Agreements, Company names/names of the relevant Obligors, eventually the Obligors address, the notional amount of the Subscription Receivables to be purchased and to be provided as security) and the conditions from the Purchase Bid available to the Prospective Purchaser in order to create a Receivables Purchase Agreement. The Prospective Purchaser will make the created Receivables Purchase Agreement available to the Seller in electronic form via the Platform or another means for electronic communication. After receipt of the Receivable Purchase Agreement by the Seller, the Seller and the Prospective Purchaser have the possibility to conclude the Receivables Purchase Agreement, however there is no obligation of the Seller to conclude the Receivables Purchase Agreement. Any Receivable Purchase Agreement only becomes effective under the condition precedent that the purchase price set out in the particular Receivable Purchase Agreement has been paid and fully and irrevocably credited within a certain term set out in the Receivable Purchase Agreement to the Bank Account of the Seller. 
  2. b) In the event that the Seller does not accept a Purchase Bid or that a Receivables Purchase Agreement is not concluded after the Seller accepted a Purchase Bid, the respective Sales Request shall in any case expire when the Publication Period ends. In the event of a refusal to conclude a Receivable Purchase Agreement by the Seller, the Prospective Purchaser shall have no claims against the Seller. 
  1. Entitlement of Tapline to remuneration

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.

  1. Special Information; no claims resulting from or in connection with Receivables Purchase Agreements

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.

9.3 Furthermore, Tapline refers to paragraph 4.2 of the Terms of Use.

  1. Limitation of liability

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:

  1. a) In respect of the violation of material obligations in the case of slight negligence arising from the obligation, Tapline’s liability shall be limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract.

Material contractual obligations” are obligations, the fulfilment of which define the contract and on which the Seller may rely.

  1. b) Tapline shall not be liable for the violation of non-material obligations in the case of slight negligence arising from the obligation and for force majeure (i.e. events impeding performance, for which Tapline is not responsible, with a minimum duration of more than twelve calendar days). In the case of force majeure, this shall apply only if Tapline has informed the Seller of the force majeure immediately after knowledge of the event.

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.

 

  1. Termination of the Platform Usage Agreement; consequences of termination

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).

 

  1. Applicable law; contract language; place of jurisdiction; amendments

11.1 The pre-contractual relations between Tapline and the Seller and these Terms of Use are governed by the law of the Federal Republic of Germany, to the exclusion of the UN Sales Convention (CSIG). 

11.2 The Platform Usage Agreement, the Terms of Use and other information for Sellers available on the Platform are available in English. Communication languages are English and/or German.

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.

11.4 Unless otherwise expressly agreed or represented herein, these Terms of Use and the Platform Usage Agreement constitute the entire agreement between Tapline and the Seller. All previous agreements and arrangements between Tapline and the Seller in relation to the object of the contract are set aside and replaced with a Platform Usage Agreement and this Terms of Use. Section 305b BGB (precedence of the individual agreement) remains unaffected for individual agreements in any form.

11.5 Amendments to and/or modifications of these Terms of Use shall only be valid when given in writing or text form. Section 305b BGB (precedence of the individual agreement) remains unaffected for individual agreements in any form.

 

Status: December 2022

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