General Terms and Conditions of Business
General Terms and Conditions of UNIVERS Capital GmbH for the Use of the Platform and the Brokerage of Securities, Special AIFs, or Other Investment Products
As of: June 10, 2024
UNIVERS Capital GmbH, headquartered in Berlin, with its business address at Grolmanstr. 36, 10623 Berlin (hereinafter also referred to as "UNIVERS Capital"), operates the real estate investing platform "www.universcapital.de" (hereinafter also referred to as the "Platform") in Germany together with EPH Investment GmbH. UNIVERS Capital GmbH is a tied agent of EPH Investment GmbH and is registered with BaFin. The platform enables visitors to access information provided by real estate companies about real estate projects, securities, and Special AIFs and—after registering as a user—to purchase securities, Special AIFs, or other investment products.
1. DEFINITIONS
For the purposes of these General Terms and Conditions (“GTC”), the following definitions apply in addition to the terms defined in the text:
· “Visitor”/“Platform Visitor”: any unregistered visitor to the Platform.
· “User”/“Platform User”: a visitor to the Platform who has successfully registered.
· “Investor”: a user of the Platform who has acquired one or more securities and/or special AIFs and/or other investment products through the Platform.
· “Real Estate Company”: a company that, as a borrower, raises capital for a real estate project via the Platform from investors as lenders or concludes a loan agreement with a bank, e.g., a property developer, a project developer, or a project or financing company specifically used for a real estate project.
· “Real Estate Project”: any project described by a real estate company, in particular the financing, refinancing, refinancing, acquisition, development, and/or renovation of real estate.
· "Financing Agreements": refers to a loan agreement for subordinated bond capital with a pre-insolvency enforcement stay for participation in the financing of the real estate project between the investor as lender and the real estate company as borrower.
· Securities/Bonds: refers to bonds that are subordinated token-based and subject to subordination and a pre-insolvency enforcement stay.
· "Financial Investments": refers to investments within the meaning of Section 1 (2) of the German Investment Act (VermAnlG). An investment pursuant to the VermAnlG is also a financial instrument within the meaning of Section 1 (11) Sentence 1 No. 2 of the German Banking Act (KWG).
2. SCOPE
1. Upon successful registration, a contractual relationship is established between UNIVERS Capital and the users of the platform in accordance with these General Terms and Conditions regarding the use of the platform ("Platform Usage Agreement"). The legal relationship between UNIVERS Capital and the users of the platform is governed exclusively by the following provisions of these General Terms and Conditions.
2. Upon successful completion of the identification process in accordance with the applicable anti-money laundering regulations (Money Laundering Act or Financial Market Anti-Money Laundering Act), the user and UNIVERS Capital enter into a contract for the brokerage of investments ("Brokerage Agreement") in accordance with these Terms and Conditions. Only upon successful completion of the identification process and conclusion of the Brokerage Agreement can the user acquire a specific investment.
3. The legal relationship between UNIVERS Capital and the users of the platform is governed exclusively by the following provisions of these Terms and Conditions. The legal relationship between UNIVERS Capital and visitors to the platform is also governed exclusively by the following provisions of these Terms and Conditions.
3. REGISTRATION
1. To continue using the platform, visitors to the platform must register as users by truthfully providing the requested personal information. Natural persons are only permitted to register if they are at least 18 years old and have full legal capacity. Legal entities may only be registered by their authorized representatives. Registration is mandatory using their real name and full address. Multiple registrations are not permitted. There is no legal right to registration. UNIVERS Capital may, at its sole discretion, refuse registration without stating reasons and, in compliance with the termination provisions agreed in these Terms and Conditions, terminate the Platform User Agreement.
2. During the registration process, UNIVERS Capital may offer users of the platform the option of choosing an additional user name, which can be used to communicate visibly with other users of the platform. Users are then free to choose such a user name. The platform is not obligated to offer such an option. User names already assigned cannot be reassigned. The user, and not UNIVERS Capital as the operator of the platform, is solely responsible for statements made under a username.
3. After registering on the platform, UNIVERS Capital will send a confirmation email to the email address provided by the user. Registration is only completed upon confirmation of the activation link in the email.
4. Registration using incorrect data is inadmissible and may lead to exclusion from the platform. UNIVERS Capital reserves the right to delete registrations created with one-time email addresses (so-called "disposable email addresses"), as well as registrations that have not been activated within three months of creation, without prior notice.
5. Users of the platform are obligated to keep the information provided during registration up to date at all times for the duration of their registration.
6. Users of the platform select a password for their registered account upon registration. Users of the platform are obligated to ensure that this password is not made accessible to third parties. Each user of the platform is responsible for all actions performed through their account. Users of the platform are obligated to immediately notify UNIVERS Capital of any third-party knowledge of their password and any misuse of their account.
7. Investors must be resident in Germany, Austria, or Luxembourg and may only use the platform for their own account. Registration is strictly personal and may not be transferred.
8. Visitors, users, and/or investors on this platform may not be recipients in the United States or act on behalf of recipients. Recipients are defined as U.S. persons as defined in "Regulation S" of the U.S. Securities Act of 1933 (US Securities Act 1933) and persons residing in the United States. These are:
A) Natural persons residing in the U.S.;
B) Partnerships or corporations organized or registered under U.S. law;
C) Estates executed or administered by a U.S. person;
D) Trusts where one of the trustees is a U.S. person;
E) U.S. branches or offices of a foreign entity;
F) Mandates (other than estates or trusts) held by a dealer or other non-discretionary fiduciary for the account or beneficial benefit of a U.S. person, or similar mandates; and;
G) Partnerships or corporations if:
i. they were organized or formed under foreign law; and
ii. they were formed primarily by a U.S. person to invest in securities not registered under the U.S. Securities Act of 1933, unless organized or formed by accredited investors (pursuant to Rule 501(a)) who are also the owners and who are not natural persons, estates, or trusts.
The aforementioned persons are prohibited from using this website. Furthermore, information on this website may not be forwarded to the United States. The investments offered on this platform are not registered under the U.S. Securities Act of 1933. Furthermore, trading in our investments is not intended for the purposes of the U.S. Commodities Exchange Act of 1936. Furthermore, the offer and distribution of our investments in the United States is not permitted. The same applies to the offer and distribution to U.S. citizens or persons who are residents of the United States, and to such natural persons and legal entities who are tax residents of the United States.
4. USE OF THE PLATFORM
1. UNIVERS Capital enables visitors to access information about real estate projects and financing agreements provided by real estate companies. It is solely the responsibility of the individual real estate companies to provide the relevant information on the platform for users to decide whether to conclude financing agreements. In particular, UNIVERS Capital does not examine whether and to what extent concluding financing agreements regarding the respective real estate project makes economic sense for the individual user. Each user makes this assessment independently and at their own responsibility. The user is expressly informed of the risk warnings contained in the respective documents relating to the real estate companies' offers. The user should only make an investment if they have fully read and understood the risk warnings.
2. UNIVERS Capital points out that UNIVERS Capital does not conduct a credit check of real estate companies and only checks the plausibility and coherence of the overall picture with regard to the information about real estate projects and financing agreements provided by the real estate companies. As part of the plausibility and coherence check, UNIVERS Capital evaluates real estate projects and can assign a so-called UNIVERS Capital class. This classification is carried out exclusively for its own purposes and in its own interest and without any protective effect for third parties.
3. The real estate company is solely responsible for the accuracy, completeness, and timeliness of the information made available about the real estate projects and financing agreements – even during the term of the financing agreements. This applies regardless of the appropriateness, plausibility, and coherence checks carried out by UNIVERS Capital in accordance with paragraph 2 above.
4. The technical provision of information on the platform by UNIVERS Capital and the possibility of concluding contracts via the platform do not constitute a recommendation or investment advice by UNIVERS Capital. UNIVERS Capital does not check whether the financing agreements offered by the real estate companies correspond to the users' investment objectives. A suitability check in this regard is not carried out. UNIVERS Capital only provides brokerage services.
5. The technical provision of information on the platform by UNIVERS Capital and the possibility of concluding contracts via the platform do not constitute legal or tax advice by UNIVERS Capital. Users are strongly advised to seek financial, tax, and legal advice, particularly from a lawyer and tax advisor, before concluding financing agreements.
6. Use of the platform is free of charge for visitors and users.
7. Any type of comments, information, or documents on the platform or associated blogs that violate applicable laws or are otherwise inappropriate, particularly racist, pornographic, offensive, or morally reprehensible content, are prohibited. Violations of this provision may result in the platform user being liable for damages, the deletion of the relevant posts, and/or the immediate exclusion of the platform user from further use of the platform.
8. To the extent that UNIVERS Capital provides links to third-party websites with external content on the platform, this external content was reviewed upon initial linking to determine whether it might give rise to civil or criminal liability. It cannot be ruled out that the content may subsequently be modified by the respective providers. UNIVERS Capital does not continuously monitor the content of linked websites for changes that could give rise to new liability. Platform users are advised to inform themselves about the applicable terms and conditions and the privacy policy/information of the respective providers on the redirected/linked pages.
9. If there are indications of misuse of the platform, in particular if contracts are concluded via the platform without fulfilling the payment obligations arising from the relevant financing agreements, UNIVERS Capital reserves the right to exclude the user from using the platform with immediate effect.
10. UNIVERS Capital reserves the right to reduce, expand, or otherwise change the services offered to users on the platform at any time if this becomes necessary for good cause. Good cause exists in particular if the services violate a legal prohibition or cause significant tax disadvantages for UNIVERS Capital or the users of the platform, or suffer from significant legal deficiencies. However, UNIVERS Capital is not obligated to do so. Users of the platform will be informed in good time by email or on the website before any changes to services.
5. SERVICING A DIGITAL PAYMENT/E-MONEY ACCOUNT
1. Before commissioning UNIVERS Capital for the first time to conclude a financing agreement, the user instructs UNIVERS Capital to open a payment account with the payment service provider in their name and for their account. UNIVERS Capital shall bear the account fees. The contract is concluded upon receipt of the acceptance by the payment service provider, with UNIVERS Capital acting as the receiving agent.
2. For this purpose, UNIVERS Capital is authorized and obligated to forward all necessary information and documents for opening the digital account to the respective payment service provider. The user hereby consents to the forwarding of their personal data necessary for opening the payment account with the respective payment service provider.
3. UNIVERS Capital does not receive any commission from the payment service provider for arranging the digital account. UNIVERS Capital bears the costs of maintaining the digital account, including the opening costs.
4. The individual provisions regarding the payment account and its possible termination are agreed in the general terms and conditions of the payment service provider, which the user agrees to when placing an order with UNIVERS Capital for the first time.
6. BROKOUT OF FINANCING AGREEMENTS
1. Users of the platform have the option of accepting offers to conclude financing agreements posted on the platform by real estate companies. The user declares their binding acceptance of an offer to conclude a financing agreement via the platform to the real estate company (regarding the subordinated loan with qualified subordination or the acquisition of the loan receivable) and to the trustee (regarding the trust agreement). The contract is concluded upon receipt of the respective acceptance by the real estate company or the trustee, in each case with UNIVERS Capital acting as the agent. Before submitting an acceptance of an offer to conclude financing agreements via the platform, the information from the registration form must be updated.
2. UNIVERS Capital points out that UNIVERS Capital only carries out the appropriateness assessment required by law (Section 16 (2) of the Fin-VermV). This process will assess the user's knowledge and experience with transactions involving certain types of financial instruments to determine whether the user can adequately assess the risks associated with the financing agreements. If UNIVERS Capital does not receive sufficient information from the user for such an assessment, the assessment cannot be carried out. UNIVERS Capital will inform the user of this. The user may nevertheless decide to accept offers from real estate companies. The same applies to cases where UNIVERS Capital believes the user cannot adequately assess the risks associated with the financing agreements. UNIVERS Capital will also inform the user accordingly. The user may nevertheless decide to accept offers from real estate companies.
3. User orders will be executed in accordance with the product risk, the customer classification, and the target market definition of the respective product, provided the order is appropriate; otherwise, the user will be informed of the lack of appropriateness.
4. Users who wish to conclude financing agreements via the platform may only use the platform for their own account. Registration is strictly personal and may not be transferred.
5. Users of the platform are generally classified by UNIVERS Capital as "retail investors"/"private clients" prior to the conclusion of the brokerage agreement. This applies regardless of the user's knowledge and experience of and in transactions with financial instruments and other capital investments.
6. Classification as a "professional client" or "eligible counterparty" is possible through a written agreement between the user and UNIVERS Capital, if and to the extent that the user requests this and provides UNIVERS Capital with written evidence of the respective requirements for classification as a "professional client" or "eligible counterparty." Downgrading to "retail client" is possible through a written agreement between the user and UNIVERS Capital, provided the user requests this in writing from UNIVERS Capital.
7. Classification as a "retail client" means that the user enjoys the highest legal level of investor protection and transparency within the business relationship. Reclassification may have adverse effects on the user with regard to the scope of UNIVERS Capital's review obligations towards the user prior to order execution.
8. In the event of the conclusion of financing agreements, UNIVERS Capital receives a commission from the respective real estate company. UNIVERS Capital will inform the user of the exact amount of the commission as soon as it is determined. UNIVERS Capital uses this commission to improve the quality of its services for the benefit of the user. The user does not incur any additional costs, such as a premium, as a result of UNIVERS Capital mediating the conclusion of the financing agreements.
9. Payments under the financing agreements are processed exclusively through an external payment service provider. UNIVERS Capital does not accept and/or make any payments itself. Payments relating to successful interest and principal repayments are received by the external payment service provider for safekeeping and disbursement until instructed by UNIVERS Capital.
7. LIABILITY
1. UNIVERS Capital is liable to the user/investor without limitation for injury to life, limb, or health, and for damages resulting from the intentional or grossly negligent breach of its contractual obligations under the Platform Usage Agreement and the Brokerage Agreement.
2. Furthermore, UNIVERS Capital is liable for minor negligence only for breaches of essential contractual obligations, i.e., breaches of obligations whose fulfillment is essential for the proper execution of the Platform Usage Agreement and whose compliance the contractual partner may regularly rely on ("essential contractual obligation"). In the event of a slightly negligent breach of an essential contractual obligation, UNIVERS Capital's liability is limited to such typical damages and/or such typical extent of damages that were foreseeable at the time the contract was concluded.
3. The above limitations of liability also apply in the event of negligence on the part of a vicarious agent of UNIVERS Capital, as well as for the personal liability of UNIVERS Capital's employees, representatives, and bodies.
4. UNIVERS Capital assumes no liability for the details and information provided by real estate companies on the platform, in particular regarding real estate projects and financing agreements.
5. UNIVERS Capital is not liable for the economic success of the financing, the default on payments, or the risk of insolvency of the contracting parties to the financing agreements.
8. TERM, TERMINATION
1. Registration on the platform is for an unlimited period and can generally be terminated by UNIVERS Capital and the registered user of the platform with five (5) business days' notice. Termination must be in text form (e.g., email, fax, letter); the registered user of the platform can terminate their registration, for example, by email to info@universcapital.de.
2. The right to terminate for good cause remains unaffected.
3. Any existing financing agreements with a real estate company remain unaffected by termination.
9. AVAILABILITY OF THE PLATFORM
UNIVERS Capital strives to ensure comprehensive availability of the platform within the limits of what is technically and economically reasonable. However, users of the platform cannot be guaranteed constant availability for technical reasons. In particular, maintenance, security or capacity reasons, as well as events outside the control of UNIVERS Capital, may lead to the temporary suspension of the services offered and the accessibility of the platform. UNIVERS Capital assumes no liability for technical difficulties experienced by users of the platform or third parties. UNIVERS Capital reserves the right to temporarily restrict access to the platform at any time if this is necessary due to capacity limits, the security of UNIVERS Capital's systems, to implement technical measures, or for other important reasons.
10. RECORDING OF TELEPHONE CALLS
1. UNIVERS Capital is legally obliged to record telephone conversations and electronic communications (e.g., email, chat, video calls, messenger services) related to the initiation/acceptance, transmission, and execution of orders from visitors and users on audio or data media and to retain these recordings. This applies regardless of whether these are conducted using employees' work or private telephones. A copy of the recordings of these conversations and communications with customers will be available for a period of five years – if requested by the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht), the Financial Market Authority (Finanzmarktaufsicht), or other regulatory authorities – for a period of seven years, and will be made available to visitors and users free of charge upon request.
2. UNIVERS Capital is also entitled to record telephone conversations related to the conduct of the customer relationship that are not related to orders on audio or data media and to retain these recordings. This includes, in particular, telephone conversations regarding complaints. The recording is for documentary purposes.
3. Before recording telephone conversations, UNIVERS Capital will inform the visitor and user of the purpose of the recording and request their consent, unless the user has already given UNIVERS Capital their general consent to record telephone conversations. UNIVERS Capital is entitled, but not obligated, to make transcripts of the recordings. The recordings may be used as evidence in any legal disputes.
11. DATA PROTECTION, CONFIDENTIALITY, TAXES
1. The collection, processing, and use of personal data during registration is carried out in strict compliance with data protection regulations. The processing of personal data serves to fulfill the agreed services and UNIVERS Capital's legal obligations. Further information can be found in the privacy policy under Data Protection, available at https://universcapital.de/datenschutz/.
2. Users of the platform must treat the contents of the concluded financing agreements and associated reports and other information confidentially. Information about real estate companies and real estate projects may only be used for the purposes pursued with the platform and stated in these Terms and Conditions.
3. UNIVERS Capital manages the data provided by visitors and users.
4. UNIVERS Capital reserves the right to randomly review the data and/or information and documents of visitors/users of the platform.
5. For the purpose of paying church tax on capital gains (if applicable), the user agrees that UNIVERS Capital and the real estate companies may request the user's church tax details from the Federal Central Tax Office so that church tax can be paid on the user's behalf if necessary. The user may object to the release of their data by submitting a blocking notice to the Federal Central Tax Office. A blocking notice remains in effect until a written revocation/withdrawal is received.
12. RIGHT OF WITHDRAWAL
Consumers have a statutory right of withdrawal, which applies to both the platform usage agreement and the brokerage agreement. These agreements can be individually revoked by consumers in accordance with the applicable statutory provisions. Visitors and users of the platform agree that UNIVERS Capital is entitled to commence and fully perform its services under the aforementioned agreements even before the end of the withdrawal period.
Note:
You have a right of withdrawal pursuant to Sections 312g and 355 of the German Civil Code (BGB) and – if you conclude an investment pursuant to the German Investment Act (VermAnlG) – an additional right of withdrawal pursuant to Section 2d of the VermAnlG. Your withdrawal can be made without reference to a specific right of withdrawal and will result in you no longer being bound by the loan agreement. If, in individual cases, the consequences of withdrawal differ between the withdrawal rights, the legal consequence that is more favorable to you will always apply.
CANCELLATION POLICY
Section 1 Right of Cancellation
You may cancel your contract within 14 days without giving any reason by means of a clear declaration. This period begins after the conclusion of the contract and after you have received the contractual provisions, including the General Terms and Conditions, as well as all information listed below in Section 2 on a durable medium (e.g., letter, fax, email). To comply with the cancellation period, it is sufficient to send the cancellation in a timely manner if the declaration is made on a durable medium. The cancellation must be sent to:
UNIVERS Capital GmbH
Grolmanstraße 36, 10623 Berlin
Fax: +49 (0) 30 / 810 56 61 – 18
Email: info@universcapital.de
Section 2
Information Required for the Start of the Withdrawal Period
The information within the meaning of Section 1, Sentence 2 includes the following information:
1. The identity of the trader; the public business register in which the legal entity is registered and the associated registration number or equivalent identifier must also be stated;
2. The trader's main business activity and the supervisory authority responsible for its authorization;
3. The trader's service address and any other address relevant to the business relationship between the trader and the consumer; in the case of legal entities, associations, or groups of persons, the name of the authorized representative;
4. The essential characteristics of the financial service and information on how the contract is concluded;
5. The total price of the financial service, including all related price components and all taxes paid through the trader, or, if no exact price can be stated, the basis of calculation that enables the consumer to verify the price;
6. Any additional costs that may be incurred, as well as an indication of any other taxes or costs that are not paid through or charged by the trader;
7. A statement that the financial service relates to financial instruments that, due to their specific characteristics or the transactions to be carried out, involve specific risks, or whose price is subject to fluctuations on the financial market over which the trader has no control, and that past performance is not an indicator of future performance;
8. A limitation on the validity period of the information provided, for example, the validity period of limited-time offers, particularly with regard to price;
9. Details regarding payment and fulfillment;
10. the existence or non-existence of a right of withdrawal, as well as the conditions and details of its exercise, in particular the name and address of the party to whom the withdrawal must be declared, and the legal consequences of the withdrawal, including information on the amount the consumer must pay for the service provided in the event of withdrawal, provided that the consumer is obliged to pay compensation (underlying provision: Section 357b of the German Civil Code);
11. the minimum term of the contract if it involves a permanent or regularly recurring service;
12. the contractual termination conditions, including any contractual penalties;
13. the Member States of the European Union whose law the trader bases its relationship with the consumer prior to the conclusion of the contract;
14. a contractual clause regarding the law applicable to the contract or the competent court;
15. the languages in which the contractual terms and conditions and the preliminary information referred to in this cancellation policy are communicated, as well as the languages in which the trader undertakes, with the consumer's consent, to conduct communication during the term of this contract;
16. whether the consumer may use an out-of-court complaint and redress procedure to which the trader is subject, and, if applicable, the conditions for accessing it;
Section 3 Consequences of Cancellation
In the event of an effective cancellation, the services received by both parties must be returned. You are obligated to pay compensation for the service provided up to the time of cancellation if you were informed of this legal consequence before submitting your contractual declaration and have expressly agreed that performance of the consideration can begin before the end of the cancellation period. If there is an obligation to pay compensation, this may result in you still having to fulfill the contractual payment obligations for the period up to the cancellation. Your right of cancellation expires prematurely if the contract has been fully fulfilled by both parties at your express request before you have exercised your right of cancellation. Obligations to reimburse payments must be fulfilled within 30 days. This period begins for you upon dispatch of your cancellation declaration, and for us upon receipt of it.
Reference to the right of withdrawal pursuant to Section 2d of the German Investment Act (VermAnlG):
Right of withdrawal
As an investor, you are no longer bound by your declaration of intent to conclude a subordinated loan agreement if you revoke it in writing within the deadline. To meet the deadline, it is sufficient to send the revocation in a timely manner.
Revocation is made by declaration to the provider. The declaration must clearly state your decision to withdraw from the contract. The revocation does not need to include a reason. The withdrawal period is 14 days and begins upon conclusion of the contract.
The revocation must be sent to:
UNIVERS Capital GmbH
Grolmanstraße 36, 10623 Berlin
Fax: +49 (0) 30 / 810 56 51 – 18
Email: info@universcapital.de
End of notice
13. CHANGES TO THESE TERMS AND CONDITIONS
1. UNIVERS Capital is entitled to amend these Terms and Conditions if this is reasonable for the user, in particular to take into account changes in circumstances over which UNIVERS Capital had no influence (e.g., in the case of changes in legislation, provided their specific content was not already foreseeable – for example, in the phase between the completion of the formal legislative process and its entry into force – or in the case of changes in regulatory requirements) or to close a gap in the Terms and Conditions (e.g., if case law should declare a clause invalid). UNIVERS Capital's right to amend these Terms and Conditions does not apply to essential provisions of these Terms and Conditions (provisions whose fulfillment is essential for the proper execution of the contract and on whose compliance the user regularly relies and may rely), such as the term of the contract and the right of termination.
2. Platform users will receive the amended Terms and Conditions by email at least four (4) weeks before they come into effect. UNIVERS Capital will also provide notice of the amendment to these Terms and Conditions on the platform itself. If registered users of the platform do not object to the validity of the amended Terms and Conditions within four (4) weeks of receiving notification of the amendment to these Terms and Conditions, the amended Terms and Conditions shall be deemed accepted. UNIVERS Capital will separately inform registered users of the platform of the legal consequences of non-compliance in the notification of the amendment to these Terms and Conditions.
14. FINAL PROVISIONS
1. These Terms and Conditions and the legal relationship between UNIVERS Capital and the users are governed by the law of the Federal Republic of Germany, excluding international private law and the UN Convention on Contracts for the International Sale of Goods (CISG), which has been incorporated into German law. The place of jurisdiction for merchants within the meaning of the German Commercial Code (HGB) is the registered office of UNIVERS Capital.
2. UNIVERS Capital does not participate in dispute resolution proceedings before a consumer arbitration board.
3. Should individual provisions of these Terms and Conditions prove to be invalid or unenforceable, this shall not affect the validity of the remaining provisions of the Terms and Conditions.