General Terms and Conditions of Next Sports GmbH
Next Sports GmbH, Kaulbachstrasse 35, 80539 München, Germany (hereinafter referred to as “Next GmbH”) is a digital financing and marketing platform connecting the online world to the real football world. Investors can use the crowdfunding platform at www.kickrs.net (hereinafter referred to as “the Platform”) to actively participate in campaigns and invest in a club. The media and sponsors will be provided with new formats and marketing materials relating to the campaigns. Investors interested in participating in a campaign can register with the Platform. A contract for the use of the Platform between Next GmbH and the Investor shall be concluded as soon as the Platform is used, but no later than upon successful registration with the Platform.
Every potential Investor who is a registered Platform user may invest in any campaigns currently in the process of fundraising (hereinafter referred to as “Funding”).
To this end, the Investor must make an investment offer which has to be accepted by the specific club or a campaign vehicle. After the successful conclusion of the contract the Investor must pay the required Loan Amount into the specified account.
The investment contract between the investor and the club or the campaign vehicle is subject to the condition precedent of the payment receipt of the Loan Amount (hereinafter referred to as “Condition Precedent”). With payment receipt the contract automatically becomes legally effective. Unless the requested capital contribution specified by the campaign (“Funding Threshold”) is reached, there will be no Funding. In that case, all investment contracts already concluded shall expire based on a condition subsequent (hereinafter referred to as “Condition Subsequent”), and all investments already made shall be paid back to the investors, as specified in the respective investment contract. If the Funding Threshold is reached, the Loan Amount shall be invested in the club or the campaign vehicle, as specified in the respective investment contract.
Next GmbH shall not become a contractual party when an investment contract is concluded on the Platform. The investment contract shall be concluded solely between the User as Investor and the club or the campaign vehicle. Next GmbH shall thus only provide the Platform for Funding. For more details on investment, please consult the respective investment contract, which can only be downloaded and printed by registered Users.
The conditions under which Investors may use the Platform as a potential Investor are as follows:
Next GmbH shall provide its services based solely on the present General Terms and Conditions of Use of the Platform, which govern the legal relationship between Next GmbH and the Platform User or potential Investor.
2.1 In order to be able to use the Platform, potential Investors must register by providing true personal information or true information about the company they are authorized to represent. Only individuals above the age of 18 and with full legal capacity or enterprises may register. The first and last name or company name and the full physical or business address must be provided at the time of registration.
2.2 To use the Platform, Investors are free to choose and indicate a username in addition to their actual name, which need not be identical to their actual name and can be used to visibly communicate with other Users on the Platform. However, multiple persons shall not be permitted to use a single account.
2.3 Registering with incorrect or otherwise false data shall not be permitted and shall lead to exclusion from the Platform. Next GmbH reserves the right to delete, without prior notice, any accounts that were created with one-time email addresses (so-called ‘disposable email addresses’), as well as any accounts that are not activated within three (3) months following their creation.
2.4 After registering with the Platform, Investors shall be sent a confirmation email in which they will be asked to confirm registration. The registration process shall be completed once the Investor has confirmed registration.
2.5 Investors shall be obliged to always keep their personal/corporate enterprise data up-to-date while registered with the Platform.
2.6 Investors may choose their own password for their registered account. Investors shall be obliged to ensure that their password is not disclosed to third parties, i.e., they are fully responsible for any action taken through their account. Investors shall be obliged to promptly inform Next GmbH about any abuse of their account, or should a third party gain knowledge of their password.
3. Platform Use
3.1 Next GmbH’s Platform shall enable potential Investors to participate in investment campaigns. Next GmbH’s service shall be limited to providing potential Investors with a Funding Platform, i.e., with an option to possibly conclude an investment contract with the club or the campaign vehicle. Next GmbH shall provide no other services in this context.
3.2 Next GmbH wishes to point out that it shall not verify whether and to what extent an investment made by the User in whatever form may be economically reasonable under the campaign. This assessment and the investment decision shall be made independently by the User and shall be the User’s responsibility.
3.3 It shall be the individual club’s or individual campaign vehicle’s responsibility to make the information, documents and files (hereinafter collectively referred to as “Information”) relevant to the Investor’s investment decision available on the Platform. Only the club or the campaign vehicle shall be responsible for ensuring that such Information is correct, complete and up-to-date – also during the Investment period. Next GmbH does not review, verify or control those information.
3.4 Those wishing to invest through the Platform shall conclude an investment contract with the respective club or campaign vehicle. The desired Loan Amount may be chosen freely within the given framework provided on the Platform. The respective contract is concluded as follows:
3.4.1. In case the Investor wants to invest via the Platform he additionally has to provide his address, place and date of birth, email address or telephone number, personal ID-number or passport number including the issuing authority, his tax identification number as well as his banking details. All requested information required to open the member account have to be complete, correct and current. If these information change after the registration the investor is obliged to update them immediately.
3.4.2 By filling out the investment form on the Plattform, clicking the warning note-button “I’ve taken note of the warning note referred to in § 13 Abs.6 VermAnlG and the “Vermögensanlagen-Informationsblatt” (VIB)” and clicking the button “Investing now with obligation to pay” at the end of the investment form the Investor makes an offer to invest an amount he has individually determined (“Investment Offer”). This Investment Offer consists of an investment in the form of a subordinated profit-participating loan (“Subordinated Profit-participating Loan”) into the club or the campaign vehicle.
3.4.3 If the Investor wants to invest a Loan Amount exceeding 1.000 Euros, he is obliged to make an additional self-disclosure during the investment process as follows:
- In case the investor is a corporate enterprise in terms of § 2a Abs. 3 VermAnlG no further information as those mentioned above in 3.4.1 are required
- Otherwise the investor has to provide the following additional information:
- Does he have minimum assets of 100.000 Euros in form of bank deposits or financial instruments
- that the Loan Amount does not exceed twice his average monthly net salary
- already existing investments in the campaign vehicle
- Does he have minimum assets of 100.000 Euros in form of bank deposits or financial instruments
3.4.4. The Investor acknowledges that Next GmbH is obliged by law to gather and record the information mentioned above. In case the investor is not a corporate enterprise in terms of § 2a Abs. 3 VermAnlG due to legal requirements he is allowed to invest an maximum amount of 10.000 Euros into the campaign vehicle if he has according to his self-disclosure investable assets of 100.000 Euros in form of bank deposits or financial instruments or he is allowed to invest twice the amount of his average monthly net salary according to his self-disclosure but not more than 10.000 Euros. All information related to the self-disclosure given by the Investor must be true and accurate. Next GmbH accepts no liability for any possible violations of law caused by untruthfully information given by the Investor.
3.4.5 After receiving the investment offer Next GmbH sends a mail to the Investor confirming the receipt of the offer (“Offer Confirmation”) and accepting the investor’s offer to give a subordinated profit-participating loan (“Investment Agreement”) to the club or the campaign vehicle (“Investment Confirmation”). A separate written agreement is not required.
3.4.6 After receiving the investment offer Next Sports GmbH sends a mail to the Investor confirming the receipt of the offer (“Offer Confirmation”) and accepting the investor’s offer to give a subordinated profit-participating loan (“Investment Agreement”) to the campaign vehicle (“Investment Confirmation”). A separate written agreement is not required.
3.5 Next GmbH shall not become a contractual party when an investment contract is concluded on the Platform. When investing, Investors may use only their own liquid funds, which must be free from third-party rights and must not be seized, pledged or assigned.
3.6 Platform use for information purposes or for preparation of investment decisions shall be free of charge for the User or potential Investor.
3.7 Investing in a club or a campaign specific SPV entails high-risk. An investor has to be aware of the fact that – in case the campaign targets (e.g. realized market value increase or certain milestones a supported talent has to reach etc.) are not achieved – he will neither receive any profit participation nor get his initial investment back. This means that even though the Investor has a claim for repayment of the loan this claim might be potentially worthless because of insolvency of the club or the SPV. Consequently an investment in a club or campaign vehicle is clearly a high-risk investment and the financial outcome cannot be predicted in advance. It depends on various factors whose development cannot be foreseen. Investing in a club or campaign vehicle therefore contains a total loss risk. Next GmbH explicitly and strongly discourages to finance the investment with loan/borrowed capital because regardless of a total loss of the investment interest and repayment obligations might continue to exist.
3.8 An investor should only consider investing into a club or campaign vehicle as part of a comprehensive investment strategy and should only invest if he can take a total loss. Therefore the amount invested into a club or campaign vehicle should be made according to the individual risk tolerance of the investor otherwise he risks liquidity required for other investments or for his lifestyle. In order to diversify risks it is recommended to invest in different asset classes and to split investments to different campaigns.
3.9 Next GmbH shall not provide any investment consulting or other consulting services whatsoever. An information or consultancy agreement shall not be formed. It is the potential Investors’ sole responsibility to decide whether he wishes to conclude investment contracts through the Platform. The Information available on the Platform shall not constitute a consulting service provided by Next GmbH and shall not replace professional consulting or advice. Next GmbH therefore recommends Investors obtain information on the legal, financial and tax consequences of an investment before deciding to conclude an investment contract, but also during the term of an investment contract.
3.10 Any type of comments on the Platform or its pertinent blogs etc. that violate applicable laws or that are otherwise inappropriate – including, but not limited to, racist, pornographic, offensive or immoral content – shall not be permitted. Any breach of this provision may result in the User becoming liable for damages and/or the User being excluded from further using the Platform with immediate effect.
3.11 If and insofar as Next GmbH should provide links to third-party websites on the Platform, Next GmbH shall assume no liability for their contents. Next GmbH has no influence over the content on such sites.
3.12 If there are any indications of abuse of the Platform, in particular if contracts are concluded through the Platform without payment of the investment to be paid under the respective investment contract, Next GmbH reserves the right to exclude the User from the Platform with immediate effect.
4. Platform Availability
4.1 Next GmbH strives to provide comprehensive Platform availability within the scope of what is technically and economically feasible. However, a right to availability at any time cannot be granted for technical reasons.
4.2 Maintenance work or security and capacity issues, as well as events outside Next GmbH’s control, may result in our services and the Platform becoming temporarily unavailable.
4.3 Platform availability also depends on the Users’ own technical equipment and on the quality and reliability of their internet data connection.
4.4 Next GmbH reserves the right to temporarily limit access to the Platform at any time if necessary for capacity reasons, for reasons of Next GmbH’s systems security or in order to perform technical measures.
5.1 In case of intent or gross negligence, Next GmbH shall be fully liable for injuries to life and limb according to the provisions of the Product Liability Act [Produkthaftungsgesetz] and within the scope of the guarantee assumed by Next GmbH.
5.2 Moreover, Next GmbH shall be liable only for a violation of material contractual obligations, i.e., obligations whose fulfillment is vital to proper performance of the contract and on fulfillment (“Cardinal Obligation”). In case of a slightly negligent breach of a Cardinal Obligation, Next GmbH’s liability shall be limited to such typical damages and/or such typical extent of damage that was foreseeable at the time of contract conclusion.
5.3 The above limitations of liability shall also apply in case of fault by one of Next GmbH’s agents and in case of personal liability of Next GmbH’s employees, representatives and bodies.
5.4 Next GmbH shall not be liable for the invalidity of the investment contracts concluded between an Investor and the campaign vehicle if the reasons for the invalidity are outside of the area of responsibility/influence of Next GmbH.
6. Term, Termination
6.1 The contract for use of the Platform shall be concluded for an indefinite period of time and may be terminated either by Next GmbH or by the User and/or Investor by giving one weeks’ notice to the end of a month.
6.2 Users wishing to end their registration and thus the contract for use of the Platform should please send a corresponding email to firstname.lastname@example.org.
6.3 Any investment contracts possibly concluded between an Investor and the club or campaign vehicle shall remain unaffected by such termination. The right to terminate for good cause shall remain unaffected.
7. Final Provisions
7.1 Next GmbH reserves the right to amend the present General Terms and Conditions at any time, with effect for the future, without providing reasons. Such amended Terms and Conditions shall be emailed no later than four (4) weeks before taking effect. Next GmbH shall also post a notice on the Platform stating that the General Terms and Conditions have been amended. If the User or Investor does not object to the application of such amended Terms and Conditions of Use within four (4) weeks of receipt of the notification stating that the General Terms and Conditions have been amended, such amended General Terms and Conditions shall be deemed accepted by the User or Investor. In its notification saying that the General Terms and Conditions have been amended, Next GmbH shall make separate reference to the legal consequences of remaining silent.
7.2 The present General Terms and Conditions and the legal relationship between Next GmbH and the User or Investor shall be subject to German law. In case an investor is a merchant, has no general court of jurisdiction in Germany or the European Union, his domicile or usual place of residence at the time the complaint is filed is unknown or the investor has transferred his residence after the conclusion of the contract outside of the territory to where the Zivilprozessordung (ZPO) applies, the place of jurisdiction is Munich.
7.3 Should any of the provisions contained herein be or become invalid or unenforceable, this shall not affect the validity of the contract as a whole. In that case, the parties shall be obliged to replace the invalid or unenforceable provision with such legally permitted provision that best reflects the purpose of the invalid or unenforceable provision and, in particular, the parties’ intention. The same shall apply in case of a loophole that needs to be closed.
As of May 2016