General terms and conditions
General terms and conditions for the use of FMH services in business dealings.
I Scope
- FMH-Finanzberatung eK (hereinafter “FMH”) operates an internet-based comparison and brokerage platform, making numerous interest rate comparisons, tools and calculators available to its contractual partners (hereinafter “FMH services”). The "FMH X - Services" are aimed exclusively at companies, the "FMH.de - Services" are aimed exclusively at consumers.
These General Terms and Conditions apply exclusively to "FMH X - services", i.e. services to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Para. 1 BGB (hereinafter "contractual partners"). They expressly do not apply to legal transactions between the user and a consumer (§ 13 BGB).
The contract is concluded exclusively under the following conditions. Deviating general terms and conditions of the contractual partner do not become part of the contract even if FMH does not expressly object to them. Conflicting or deviating conditions of the contractual partner are only recognized if FMH expressly agrees to their validity in writing.
FMH is entitled to change these GTC at any time with effect for the future. The contractual partner will be notified of the changed conditions in writing no later than two weeks before they come into effect. If the contractual partner does not object to the validity of the changed conditions within two weeks after receipt of the notification, the changed conditions are deemed to have been accepted by the contractual partner.
Individual agreements made with the contractual partner in individual cases always take precedence over these GTC. Subject to evidence to the contrary, a written contract or written confirmation from FMH is decisive for the content of such agreements.
II Offers and service descriptions
The "FMH X - Services" presented on the comparison and brokerage platform do not represent a legally binding offer, but rather an invitation to submit an offer. Any service descriptions on FMH's comparison and brokerage platform do not have the character of an assurance or guarantee.
III Scope of services and remuneration
With regard to the scope of services owed by FMH and the remuneration to be paid for this, the respective cooperation and/or usage agreements concluded between the contractual partners apply together with the associated annexes, such as conditions, data set definitions or non-disclosure agreements.
IV Secrecy
The contracting parties undertake to maintain secrecy about the contractual agreements and the respective business and trade secrets of the other contracting party that have come to their knowledge in the course of the cooperation. This obligation also applies to the period after the end of the contract.
FMH reserves the right of ownership and copyright to all documents provided to the contractual partner in connection with the placing of the order – also in electronic and digital form – such as comparison calculators, tools, etc. These documents may not be made accessible to third parties unless FMH gives the contractual partner written consent. If a contract between FMH and the contractual partner does not come about, the documents provided must be returned or destroyed within ten (10) working days. The same applies to the documents provided after the end of the contract.
The contracting parties collect, store and use personal data exclusively for the fulfillment of the contractual relationship and do not pass them on to third parties.
Each contracting party is responsible for compliance with the data protection regulations, in particular towards customers, and indemnifies the other contracting party from any claims by third parties due to violation of such regulations.
V Data protection
The parties act as separate controllers within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 04/27/2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46 /EG (General Data Protection Regulation) and are fully responsible for the processing of their own personal data.
The contracting parties do not exchange personal data, with the exception of data about the representatives and employees of the contracting parties, to the extent necessary to fulfill their obligations and protect their rights under the contract.
Further details on data protection are regulated in FMH's data protection declaration.
VI Copyright and other intellectual property rights
The comparison and brokerage platform and the underlying software and databases as well as the software made available to the contractual partner are protected by copyright. This also applies to the texts, images, logos and the design of the comparison and brokerage platform itself published on the comparison and brokerage platform and the software made available to the contractual partner. The provision for use of the comparison and brokerage platform and the software made available to the contractual partner - to the extent permitted under the concluded cooperation and/or usage agreements together with the associated appendices, such as conditions, data set definitions, non-disclosure agreements or in these General Terms and Conditions - does not constitute a waiver of copyrights.
The comparison and brokerage platform and the software and data made available to the contractual partner may only be used in the manner intended by FMH. The rights of use are conclusively regulated in the respective cooperation and usage agreements together with the associated appendices, such as conditions, data set definitions, non-disclosure agreements and these General Terms and Conditions.
VII Disclaimer
Liability on the merits
Regardless of the legal basis, FMH is liable in the event of intent or negligence. In the event of simple negligence, FMH is only liable for damage resulting from the breach of a material contractual obligation (so-called cardinal obligations in the sense of case law). Essential contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
Liability according to amount
In the event of a breach of a cardinal obligation, liability is always limited to compensation for the damage that was foreseeable and typically occurring at the time the contract was concluded, unless there was intent or gross negligence. In the event of intent or gross negligence, FMH is always liable without limitation.
Liability for injury to life, body or health
The aforementioned exclusions or limitations of liability do not apply to liability for grossly negligent or intentional conduct, for injury to life, limb or health or under the Product Liability Act and - if relevant - in the event of a breach of an obligation under Sections 60 or 61 VVG.
Liability of legal representatives and auxiliary persons
The above exclusions and limitations of liability also apply with regard to the liability of FMH's employees, workers, employees, representatives and vicarious agents and in particular in favor of the shareholders, employees, representatives, organs and their members with regard to their personal liability.
Liability for posted data
5.1. Unfamiliarity of posted content in relation to FMH
The data and content of the contractual partners placed on the platform originate exclusively from them and represent third-party content for FMH. This content remains foreign for FMH even after it has been posted on the platform; FMH does not adopt this content as its own. Each contractual partner is therefore obliged to check the data and content relevant to him/herself. FMH assumes no liability for the correctness or completeness of the information provided on the platform that FMH receives from third parties.
5.2. No liability for mediated services and performance
Insofar as FMH arranges access to third-party databases or services, FMH is not liable for the existence or security of these databases or services, nor for data protection, the correctness of the content, completeness or topicality or the freedom from third-party rights with regard to the data and information received by the contractual partner and programs. The automatic and short-term provision of third-party content on the platform is also considered mediation for access to use. FMH is also not liable for claims by a party resulting from a contract mediated between the user/customer and the financial service provider. In particular, FMH is not responsible for damage, non-performance or poor performance arising from this contract and in this respect does not make any representations or guarantees on the platform about the suitability, availability or quality of the proposed offers presented on the platform.
FMH does not guarantee that all financial service providers on the market in the selected service segment will be included in the presentation of the offers. FMH makes no guarantees about the suitability, availability or quality of the offers presented and assumes no liability whatsoever for the availability of the services presented. The respective financial service provider with whom the user concludes a contract is responsible for this. The information provided by FMH does not constitute a promise, guarantee or assurance.
5.3. Member Release from Liability
The contractual partner shall indemnify FMH against all third-party claims that they assert against FMH due to incorrect or illegal information provided by the contractual partner. Incorrect information also includes information that has arisen as a result of a violation of the obligation to check after automatic completion or data entry by an authorized representative. In the event of a claim based on incorrect information, the contractual partner is obliged to cooperate with FMH. For this purpose, the contractual partner must inform FMH immediately of the claims asserted and provide FMH with all information required for the examination of the claims and a legal defense by FMH. The contractual partner is liable for costs incurred by FMH due to a necessary legal defence. This does not apply if the contractual partner is not responsible for the infringement.
The contractual partner shall also indemnify FMH against all claims asserted by a customer of the contractual partner based on advertising statements by the contractual partner or an agent and which would not exist or would not exist to this extent without the advertising statement. This regulation applies regardless of whether the advertising statement is made before or after the conclusion of this agreement. The objection that the statement has been corrected can only be raised if this correction was made before the time of the conclusion of the legal transaction between FMH and the contractual partner.
VIII Exclusion of offsetting
The contractual partner can only offset claims that are undisputed or legally binding.
IX Retention Rights
The contractual partner can only offset claims that are undisputed or legally binding.
X Assignment Prohibition
The contractual partner may only assign claims from this contract with the consent of FMH.
XI Place of Performance
The place of performance for mutual services is FMH's registered office.
XII Written Form Requirement
All ancillary agreements, amendments or additions to the contractual agreements as well as these GTC must be in writing to be legally effective, whereby written electronic form is not sufficient. This also applies to the change or cancellation of this written form requirement.
XIII Governing Law and Jurisdiction
The contract language is German. The implementation and interpretation of the provisions of this agreement are subject to German law to the exclusion of private international law. The exclusive place of jurisdiction for disputes arising from or in connection with this agreement is Frankfurt am Main.
XIV Final Provisions
Should one or more provisions of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby. In this case, the parties undertake to agree on an effective regulation that comes as close as possible to the legally void or non-existent agreement in economic terms. The same applies to loopholes.
Status: August 2022