Standard Terms and Conditions of Contract of PricewaterhouseCoopers Corporate Finance Beratung GmbH of 20th November 2017
("Standard Terms and Conditions")
– Digital Valuation –
1. Scope of application
1.1 These Standard Terms and Conditions apply to contracts entered into between PricewaterhouseCoopers Corporate Finance Beratung GmbH ("PwC") and its customers ("Customers") regarding the use of the Digital Valuation online platform ("eValuation").
1.2 Point of contact and address for correspondence for all questions that arise in connection with the use of eValuation is
PricewaterhouseCoopers Corporate Finance Beratung
Gesellschaft mit beschränkter Haftung
Friedrich-Ebert-Anlage 35-37
60327 Frankfurt am Main, Germany
E-mail: evaluation_support@de.pwc.com
Telephone: +49 69 9585-5602
Fax: +49 69 9585-5962
1.3 If, by way of exception in individual cases, legal relationships under the law of obligations are established with third parties, then such third parties shall also be subject to the liability provisions in accordance with clause 11 of these Standard Terms and Conditions.
2. Contractual object of eValuation
The object of this contract is the provision of the online tool, eValuation; the specific scope of services is subject to the service description of each module chosen when the order is placed.
In the context of the use of eValuation, PwC offers telephone support to the Customer. This telephone support constitutes a voluntary supplementary service and may be changed or discontinued by PwC at any time.
3. Conclusion of the contract
3.1 The product order by the Customer constitutes an offer to PwC for the conclusion of a contract regarding the use of eValuation. Upon order by the Customer, PwC sends a message confirming its receipt and providing details of the order. This order confirmation does not constitute an acceptance of the Customer's offer, but is merely meant to inform the Customer of the fact that PwC has logged the subscription request. A contract regarding the use of eValuation only comes into existence once PwC has confirmed the contract by way of a separate e-mail ("Activation Confirmation") which notifies the Customer that the Customer's access to eValuation has been activated.
3.2 The Customer may only access eValuation by means of access data (user name, password and mobile phone number or dynamic passcode, which is sent to the Customer dynamically by text message and is valid for a limited time only – known as two-factor authentication). Access takes place only via the Internet. After registration, the Customer receives the access data.
3.3 The access data provided allows the Customer access to eValuation during the term of the contract. In the context of one access, any number of requests can be placed and valuations created.
4. Right of revocation for consumers
4.1 The Customer has the right to revoke this contract within 14 days without giving reasons.
4.2 If the Customer is a business owner within the meaning of section 14 German Civil Code (Bürgerliches Gesetzbuch, "BGB") and, in entering into the contract, acts in pursuance of his commercial and self-employed business, then this right of revocation does not apply.
4.3 The time limit within which the revocation is to be exercised is 14 days from the day on which the contract is concluded. To exercise the right of revocation, the Customer must inform
PricewaterhouseCoopers Corporate Finance Beratung
Gesellschaft mit beschränkter Haftung
Friedrich-Ebert-Anlage 35-37
60327 Frankfurt am Main, Germany
E-mail: evaluation_support@de.pwc.com
by way of an unequivocal statement (e.g. a posted letter, fax, e-mail) about its decision to revoke this contract.
To comply with the right of revocation it is sufficient for the Customer to send [the declaration] about the exercise of the right of revocation prior to the expiry of the time limit for revocation.
4.4 Once the Customer has revoked the contract, PwC will repay all payments received, immediately and no later than 14 days from the day on which the statement of revocation has been received by PwC.
4.5 The Customer expressly agrees to PwC commencing performance of the service prior to the end of the period of revocation.
5. Use of eValuation
5.1 The Customer is granted the non-exclusive right, for a duration limited to the term of this contract, to access eValuation by means of an Internet connection and to use the functionalities contained in eValuation on its dashboard by means of a browser in accordance with this contract. The Customer is not granted any additional rights, in particular in relation to eValuation, the software application or the operating software.
5.2 The Customer is under an obligation to keep the access data – in particular the password – confidential and to prevent any misuse by third parties (this shall also include the use by unauthorised persons); in addition, the Customer shall ensure that any users who are active within its institution also comply with this obligation.
5.3 The Customer is not entitled to use eValuation beyond the use permitted in accordance with this contract or to allow third parties such usage or to grant third parties access to eValuation. In particular, the Customer is not allowed to reproduce or sell eValuation or parts thereof or to cede eValuation or parts thereof for a limited period of time and especially to rent or lend it out.
5.4 If the Customer becomes aware of a misuse of the access data, in particular pursuant to clauses 5.2 and 5.3. of these Standard Terms and Conditions, he shall notify PwC without delay.
5.5 In the event of a misuse, PwC is entitled to immediately block access to eValuation. Other than that, the Customer shall be liable for all loss or damage suffered by misuse for which the Customer is responsible.
6. Authority to make changes and unavailability of eValuation
6.1 PwC is entitled at any time to change, extend or restrict the content, structure and user interface of eValuation or to exchange content. This includes, for example, the extension or limitation of the data basis.
6.2 PwC is entitled to service and maintain the software and/or hardware systems at regular intervals and to carry out data backups. This may result in temporary periods of unavailability of eValuation.
6.3 If and to the extent that the Customer is able to use eValuation during the periods of maintenance, there is no legal right to such use. If a reduction or suspension of services occurs in the use of eValuation during periods of scheduled unavailability, then the Customer expressly does not have a warranty or damages claim.
6.4 If the contractual use of eValuation is affected due to intellectual property rights of third parties through no fault of PwC, then PwC shall be entitled to refuse the services affected by such rights. PwC will notify the Customer of such occurrence without delay. In this case, the Customer shall not be obliged to pay the fee.
7. Obligations of the user
7.1 The Customer shall be responsible for establishing the technical requirements for accessing eValuation at its own premises, in particular with regard to the hardware or operating system software used by the Customer, the connection to the Internet and the current browser software. In cases of doubt, the Customer is required to request details from PwC as to the browser software that should be used in each case.
7.2 PwC is entitled, at its discretion, to continue to develop functionalities and components of the software on which eValuation is based in accordance with the technical developments of the Internet, without the Customer incurring substantial legal or economic disadvantages as a result. Following notification by PwC, the Customer shall make any adjustments of the soft- and hardware deployed by it.
7.3 Normal usability of eValuation requires that the Customer's system accepts the cookies transmitted by PwC's server. The Customer shall make the necessary adjustments.
7.4 PwC points out that the Customer is responsible for ensuring secure access to the Internet and that, when using eValuation, the Customer must make suitable provisions in order to ensure the safety of his systems and to prevent the loss of data. Moreover, the Customer must carry out regular data backups and may only use browsers that are designated for a productive usage and are state of the art; the Customer must not use any browsers that are not recommended by the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik), he must ensure a current patch level of the browser and deploy a suitable protection software against viruses.
7.5 In order to ensure the proper processing of the contract, the Customer is obliged to immediately notify PwC in writing of any changes to his name, company name or invoicing address.
8. Usage fee
8.1 The usage fee payable for the use of eValuation depends on the module chosen by the Customer.
8.2 Once an invoice has been issued, the usage fee for the chosen module shall be due for payment immediately for the whole of the term.
8.3 Only undisputed claims or claims that have been declared final and unappealable by a court of law may be offset against any claims of PwC for payment of the fee or reimbursement of expenses.
9. Use and disclosure of valuation results to third parties
9.1 In relation to the valuation results, the Customer has a simple and non-revocable right of use for his internal use, which is unlimited in terms of time and location. The right of use granted to the Customer includes the right to process, restructure and publish the valuation results, provided the Customer first adopts the valuation results as his own and there is no indication of the authorship of the Customer. In addition, the Customer is entitled to reproduce work results by taking copies in print or electronic format (e.g. magnetic tape, CD-ROM, CDI, DVD, Electronic Paper, main hardware memory, hard drive, USB memory) and to use them for his internal purposes.
9.2 The valuation results produced by means of eValuation must not be published or referenced, in whole or in part, in a document available to the public, on the Internet or in any other media addressed to the public. A disclosure of any valuation results created by means of eValuation to any other third parties requires the prior written consent of PwC.
9.3 Regardless of the above provisions, the valuation results created by means of eValuation may be disclosed to the Customer's external advisors (jointly the "Advisors"), provided the Customer ensures that the Advisors (a) treat the valuation results as confidential, (b) only use the valuation results for purposes of advising the Customer and (c) do not assert any claims for potential loss or damage that they may suffer due to the use of the information contained in the valuation results. Liability due to an intentional breach of duty shall remain unaffected.
10. Warranty
10.1 PwC does not accept any liability for the accuracy, completeness and currentness of the data used within eValuation if PwC has received the data from third parties, unless PwC was aware of the inaccuracy of the data or unless PwC failed to become aware of such inaccuracy due to its own grossly negligent or intentional conduct.
10.2 Any defects of eValuation or any of the called-up elements will be rectified by PwC once the Customer transmits an unambiguous error description in text form (section 126 BGB). If it is not possible to rectify an error within a reasonable time, the Customer may claim a proportional reduction of the usage fee.
10.3 Any errors and their description shall be reported to the contact address of PwC (clause 1.2.).
10.4 Warranty claims are excluded if a defect is due to circumstances for which the Customer is responsible and, in particular, if the Customer has breached his cooperation obligations pursuant to clause 7.
10.5 PwC cannot warrant that, as part of the benchmarking that is used within eValuation, the Customer will find a matching, significant reference group for his business in every case.
11. Liability
11.1 Any liability on the part of PwC for damages claims of any kind for an event of loss or damage caused by simple negligence shall be limited to a total maximum amount of EUR 4 million. If, in the Customer's opinion, the foreseeable contractual risk substantially exceeds this liability cap, PwC is willing – in return for appropriate compensation for the risk assumed – to agree a reasonable higher liability amount, provided that insurance coverage may be obtained for this.
11.2 The liability of PwC for injuries to life, body and health or in the event of an intentional breach of duty shall remain unaffected.
11.3 Third parties are only able to derive claims from the contract between PwC and the Customer if this has been expressly agreed or if such claims are based on mandatory statutory provisions. With regard to such claims, these Standard Terms and Conditions shall also apply vis-à-vis these third parties. PwC has the right to raise any objections that arise from the contractual relationship with the Customer also vis-à-vis third parties.
11.4 If several claimants assert claims from the contractual relationship with PwC due to a negligent breach of duty on the part of PwC, the maximum amount set out in clause 10.1. shall apply in relation to the respective claims asserted by all claimants.
11.5 A damages claim shall lapse unless legal proceedings are commenced within six months after the written refusal to pay damages and unless the Customer was notified of such consequence. This shall not apply in relation to damages claims based on intentional conduct as well as in relation to a culpable injury to life, body and health. The right to invoke the statute of limitation shall remain unaffected.
12. Confidentiality
12.1 Confidential information shall mean all information PwC receives from the Customer in order to process the contract and which are marked confidential or which are evidently confidential owing to their object or other circumstances. Information shall not be deemed confidential if, at the time PwC became aware of it, it was already in the public domain or entered the public domain subsequently with the Customer's consent.
12.2 PwC undertakes to treat all confidential information as strictly confidential and to use it only within the context and for the purposes of the contract.
12.3 The Customer, however, hereby consents to a valuation and use of confidential information transmitted by it so as to allow PwC to assess the confidential information and disclose them in an anonymised format to other eValuation customers in order to perform and provide a benchmark.
12.4 The Customer agrees that contract-related data is stored on decentralised storage devices of external service providers. The Customer warrants that he has obtained further details from the web page [www.pwc.de/external-service-providers].
12.5 The confidentiality undertaking does not apply if there is an obligation to disclose the confidential information based on a court decision, an administrative order or
statute.
12.6 The Customer shall take suitable precautions in order to ensure confidentiality.
12.7 Confidential information will only be imparted to the employees of PwC or other third parties who require such information due to their job. The confidentiality obligation shall continue to apply even after the contract has terminated.
12.8 The client agrees that e-mail communication, which is automatically sent by eValuation to the client and/or the contractor as well as via eValuation contact forms to the contractor, is sent unencrypted via Sendgrid - a leading e-mail service provider.
13. Termination
13.1 The contract is terminated automatically after a term of three months.
13.2 This shall not affect the right to terminate the contract without notice for cause. Good cause for a termination shall exist if, taking into account all circumstances of the individual case and weighing up the mutual interests, the continuation of the contractual relationship until its agreed termination or the expiry of the notice period is unreasonable. A warning is required prior to such termination unless a positive result is not expected or the relationship of trust is impaired to such a degree that an immediate termination of the contract appears justified.
14. Constituent parts of the contract and written form requirement
Changes to the contract or any other legally-relevant statements pertaining to the contract must be made in writing to be valid. The foregoing also applies to any waiver of this written form requirement.
15. Applicable law and place of jurisdiction
15.1 Only German law shall apply in relation to the contract, its implementation and the claims arising hereunder.
15.2 The exclusive place of jurisdiction for all legal disputes arising directly or indirectly from this contractual relationship shall be Frankfurt am Main, Germany.
16. Alternative dispute resolution in consumer matters
The German Consumer Dispute Resolution Act (Verbraucherstreitbeilegungsgesetz, "VSBG") constitutes the national implementation of the European ADR Regulation regarding alternative dispute resolution in consumer matters (2013/11/EU).
According to the ADR Regulation, in cases of disputes with businesses arising from purchase or service contracts, Member States need to offer consumers access to extrajudicial dispute resolution bodies besides courts of law. With regard to business owners
section 36(1) VSBG provides that every business owner who operates a website or uses standard terms and conditions must notify the consumer about its willingness to participate in a dispute resolution procedure with an appropriate body. PwC does not participate in such dispute resolution procedure.