KYC Complyer Terms & Conditions

Preamble

As part of the requirement from the Money Laundering Act, companies are obliged to carry out checks at the start of, and during, a customer relationship, pursuant to Section 2 (1) of the German Money Laundering Act (Geldwäschegesetz, GwG). For this purpose, Validatis (hereinafter referred to as ‘Provider’) provides a digitalised workflow process which facilitates the verification of legal persons through a web application. There is also the option of validating digital information for new and existing customers using integrated register extract services. The following terms govern the use of the web application for looking in the commercial register, the register of cooperatives and the partnership register as well as for automatically retrieving documents from the above-mentioned registers. Use of the web service for obligors in accordance with numbers 1 to 3 and 7 of Section 2 (1) of the German Money Laundering Act (Geldwäschegesetz, GwG) also governs the inspection of the transparency register and automated retrieval of documents from the transparency register to determine the ultimate beneficial owner.

 

Section 1 – Registration

The Provider carries out registration. To do so, the user must transmit the following user data to the Provider using the e-mail address specified by the Provider in a separate offer:

  • First name
  • Surname
  • E-mail address

The Provider shall provide the User with login details. Before each use, the user must log in using login details via the KYC Complyer’s web application.

 

Section 2 – Service offering

  1. The Provider provides the user with the KYC Complyer services listed in the separate offer and the separate module overview via the web application.
  2. Use of the KYC Complyer is made possible through a web application using a web browser that is in line with the latest technological advancements.
  3. If the Provider uses third-party services to provide the services offered, such third parties do not become contractual partners of the user.
  4. The Provider reserves the right to extend, change or improve the above-mentioned services.

 

Section 3 – Rights and duties of the user

  1. As part of the User Agreement, the user receives the non-exclusive, non-transferable right to use KYC Complyer. The right of use includes:
    • search and read access;
    • downloading and saving search results to a storage medium; and
    • printing out search results.
    Requests are limited to the number agreed separately.
  2. The user is explicitly prohibited from the automated operation of the KYC Complyer and getting around access blocks when the number of requests has been used. If the user breaches these duties, the Provider is entitled to immediately block the user’s access to the web application. Further rights and claims of the Provider, with particular reference to the right to extraordinary termination and the assertion of claims for damages shall remain unaffected by this.
  3. The user must find out about the respective access configuration in the specific technical configuration from the Provider and ensure that the technical components (hardware and software) are compatible. In the event of any further developments of the KYC Complyer, it is the responsibility of the user to adapt the internal IT infrastructure after being notified by the Provider.
  4. If the user finds that the KYC Complyer is malfunctioning, it is obliged to immediately notify the Provider in writing, electronically or in text form.
  5. The user is obliged to notify the Provider immediately if individual user accounts are to be deactivated.
  6. The user is only entitled to share KYC Complyer, data and documents made available through KYC Complyer or to make these available either free of charge or for a fee—regardless of whether this is the data originally provided or enriched or changed or data otherwise processed—to affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (Aktiengesetz; hereinafter ‘AktG’); any other sharing or making available to third parties is explicitly not permitted. This particularly applies to sharing data and documents and making such data and documents available to third parties who distribute such data for a fee or make it available to others (‘Reseller’).
  7. The user is responsible for observing data protection regulations and the requirements of the Money Laundering Act when retrieving and using data obtained from KYC Complyer.

 

Section 4 – Rights and duties of the Provider

  1. If the Provider provides free services, these may be discontinued at any time and without notice. This does not result in a claim for reduction, reimbursement or compensation for the user.
  2. On request, the Provider shall provide the user with current information on which browsers are supported.
  3. The Provider is entitled to take technical measures to prevent use beyond the permissible scope (request quota), with particular reference to installing and extending corresponding access blocks. In particular, the Provider has the right to log search queries the user makes in order to compare this against the agreed number. The Provider shall inform the user when the quota has been used up.
  4. The Provider is also entitled to deactivate user accounts, especially in the event of incorrect, improper and non-contractual use.
  5. KYC Complyer shall be made available for use 24/7. This excludes maintenance and repair work. The provider strives to achieve annual availability of 99%. The systems and servers used are regularly maintained and adequately secured. Due to the structure of the Internet, the Provider has no influence on data transmission over the Internet.
  6. Adjustments, changes and additions to KYC Complyer, as well as measures to identify and fix malfunctions may result in temporary interruptions or impaired accessibility for the online platform.

 

Section 5 – Transparency register retrieval service

  1. The transparency register website is available for obligors in accordance with Section 2 (1) of the German Money Laundering Act (Geldwäschegesetz, GwG).
  2. The functionality of the technically supported transparency register retrieval service for obligors in accordance with numbers 1 to 3 and 7 of Section 2 (1) of the GwG depends on the successful registration and activation of the customer account by the registry office (transparency register). The user is required to carry out the following actions for the web service to inspect the transparency register:
    • extended registration for the inspection of the transparency register. For this purpose, the user must register as an obligor in accordance with numbers 1 to 3 and 7 of Section 2 (1) in conjunction with Sections 2 and 3 of the Transparency Register Inspection Ordinance (Transparenzregistereinsichtnahmeverordnung, TrEinV).
    • The user shall send the login details for the transparency register to the Provider using a process set out by the Provider.
    • The user is required to pay any fees due for documents retrieved via the transparency register to the party responsible for maintaining the register.

 

Section 6 – Fees

  1. Fees are based on the fee shown in the separate offer.
  2. The invoice amount is payable within 14 days of receipt of the invoice.

 

Section 7 – Disclaimer of warranty

The Provider makes no guarantee for

  • the documents and data retrieved via KYC Complyer corresponding with the current entry in the registers at the time of retrieval;
  • the data and documents provided via KYC Complyer achieving a certain purpose for the user;
  • all information about the company retrieved and its ultimate beneficial owner being accurate and complete with respect to content;
  • it being possible for the user to use the transparency register retrieval service in an automated way;
  • the KYC Complyer being available at all times or at certain times; and
  • it being possible to use retrieval services at all times or at certain times, e.g. due to the sources being unavailable.

 

Section 8 – Liability

  1. The Provider and the user are only liable for property damage and financial losses for which they are responsible due to intent or gross negligence. Liability for property damage and financial losses caused by slight negligence only applies in the event of a breach of essential contractual duties (limited to the foreseeable damage typical for the contract). Essential contractual duties are where the fulfilment of such a duty would enable proper execution of the contract in the first place, and where the Contracting Partner may regularly rely on compliance with such a duty (‘cardinal obligations’). The above limitation of liability applies accordingly in support of the legal representatives, employees and other agents and/or vicarious agents of the respective other Party. Further liability is excluded.
  2. The Provider is not liable for non-performance or delayed performance of its obligations if non-performance or a delay is directly or indirectly caused by an event that is beyond its area of influence (hereinafter: ‘force majeure’). Force majeure particularly includes
    • earthquakes;
    • fire;
    • terrorism;
    • armed conflicts;
    • strike and lockouts; and
    • The prevention of performance for reasons pertaining to data protection, competition or copyright or for other legal reasons.
  3. If the data and documents provided via KYC Complyer are validated by the user, enriched with data from other sources, changed or processed in any other way, the liability of the Provider for damage based on such processing of this data shall be excluded.
  4. The Provider is not liable for damage that arises due to a lack of availability or accessibility with respect to KYC Complyer. This particularly applies to maintenance and repair work or in cases of force majeure.
  5. The Provider is not liable for damage that arises due to a lack of notification of deactivation of user accounts in accordance with Section 3 (5) of these terms of use.
  6. The Provider and the user agree that the achievement of a performance success is not owed. In particular, the Provider is not liable for any damage resulting from the fact that
    • the documents and data provided via KYC Complyer correspond with the current entry in the registers at the time of retrieval;
    • the data and documents provided via KYC Complyer achieve a certain purpose for the user;
    • all information about the company retrieved and its ultimate beneficial owner is accurate and complete with respect to content;
    • it is not possible for the user to use the transparency register retrieval service in an automated way; or
    • it is not possible to use retrieval services at all times or at certain times, e.g. due to the sources being unavailable.
  7. If third parties assert claims against the Provider due to the infringement of rights caused by the retrieval of data, the utilisation or dissemination of data retrieved by the user via KYC Complyer, the user shall indemnify the Provider against all third-party claims, insofar as these claims are based on the user being at fault.

 

Section 9 – Non-disclosure

  1. The Provider and the user are obliged to treat all knowledge of business and trade secrets obtained through the use of KYC Complyer, as well as other non-public circumstances relating to the other Party, as well as login details and passwords (hereinafter: ‘confidential information’) as confidential, to not make them accessible to third parties and to not use them for commercial purposes outside the contractual purpose, unless otherwise separately agreed.
  2. This non-disclosure obligation does not apply to information and documents that
    • were already demonstrably known to the respective other Party before the start of the collaboration;
    • the respective other Party lawfully receives from a third party;
    • are public knowledge or become public knowledge without the obligations contained in this Contract being violated;
    • must be shared on the basis of legal obligations (e.g. tax audit and/or company audit); and
    • have been released for distribution by the respective other Party.
  3. The Providers and the user are obliged to impose on their employees who have access to such confidential information the same obligations as those applicable to the Provider and user above, as far as legally possible, and including for the period after the collaboration. The same obligation applies to subcontractors and service providers (hereinafter ‘Partners’). The Partners will apply the same level of care to non-disclosure as they apply when handling their own confidential information. The Provider and user shall ensure that Partners are bound to non-disclosure to the same extent.
  4. The user shall immediately notify the Provider of any misuse or disclosure in writing, electronically or in text form.
  5. The obligations set out in paragraphs (1) to (4) shall continue to apply after the duration of the contractual term.

 

Section 10 – Term and termination

  1. The Contract is concluded for an indefinite period of time. Notice of termination can be given with effect from 12 months with a notice period of three months.
  2. The separate offer can deviate from the term and the notice periods.
  3. This Contract may be extraordinarily terminated for good cause. In particular, good cause is where
    • essential contractual obligations assumed in this Contract are culpably breached and the breach is not rectified within a reasonable deadline that has been set, despite a reminder having been sent;
    • data protection or non-disclosure provisions are culpably violated;
    • insolvency or liquidation proceedings commence over the respective other Party’s assets or the commencement of such proceedings is rejected due to lack of assets or an administrative receiver is appointed; or
    • the introduction, interpretation or application of new legal or administrative provisions does not appear to make the continuance of the Contract economically reasonable for one Party.
  4. Notice of termination must be given in writing.

 

Section 11 – Final provisions

  1. The place of performance and the place of jurisdiction for any disputes arising from or in connection with this Contract is Cologne.
  2. This Contract is governed exclusively by law of the Federal Republic of Germany.
  3. This Contract contains all of the agreements between the Parties. If agreements deviating from these terms of use are to be made, they must be referred to as deviations, with specific reference to the passage to be changed in these terms of use, and these must be made in text form. The Provider can make adjustments and amendments (‘updates’) to these terms of use at any time. These updates shall be sent to the user in text form within the terms of use to be updated (by e-mail; in modification mode). If the user does not explicitly object to individual updates or the updates as a whole within two weeks, these will take effect from the end of the two-week period to the extent of the undisputed updates. In the event of a timely objection by the user, extraordinary termination for cause exists for the Provider to terminate the Contract in accordance with Section 10 (3).
  4. Should one or more provisions of these terms of use be or become ineffective or unenforceable either in whole or in part, the validity of the remaining provisions shall remain unaffected. The ineffective provisions shall be replaced with provisions that correspond with or at least come as close as possible to the purpose of the provisions that the Provider and user would have agreed had they been aware of this.

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