Usage agreements
[Definitions]:
„KPMG Matchmaker – one of the leading platforms for company sales and growth financing“KPMG Matchmaker – one of the leading platforms for company sales and growth financing (hereinafter: the “KPMG Matchmaker platform”) brings parties interested in company acquisitions or investments together with companies and entrepreneurs in an uncomplicated manner with the aim of facilitating their investment or succession goals. The KPMG Matchmaker platform uses provided information (“search criteria” or “search profiles”) to identify relevant candidates that match the respective search criteria. With the express consent of both parties (i.e. the surrendering parties / the capital-seeking parties and the investing parties or their representatives / third-party advisors, e.g. consultants), a corresponding opportunity for contact is created. The service of the KPMG Matchmaker platform in this context is limited to matching. The scope of service of the KPMG Matchmaker platform does not include assistance with recruitment for management or advisory positions (employment or consulting). KPMG is under no obligation to take action.
„Matching“Matching refers to the process of identifying (partial) correlations of search criteria between sellers / capital-seeking parties and buyers / investors. This is carried out on the basis of an algorithm developed specifically for this application. Such (partial) correlations of search criteria are referred to as “matches.” KPMG subjects the results of the matching for each individual case to quality control before the users are notified about a “match.”
„Users“Users are all parties that register for the KPMG Matchmaker platform.
„Seller / capital-seeking party“The seller / capital-seeking party” is the partner / shareholder / general partner of the company to be sold / the capital-seeking company. If the seller / capital-seeking party is a legal entity and/or non-identical with the user, the user acting as the representative of the seller / capital-seeking party is referred to as the advertiser or also as the seller / capital-seeking party.
„Buyer / investor“The buyer / investor is an interested party which is seeking to acquire some or all of the shares in a company for sale or to invest in a company or asset. If the buyer / investor is a legal entity and / or non-identical with the user, the user acting as the representative of the buyer/investor is referred to as the advertiser or also as the buyer / investor.
„Advertiser“If the user is a representative and/or third-party advisor and not the buyer/investor itself, the user registers as an “advertiser” and provides evidence substantiating their authorisation to represent the buyer/investor in legal or commercial matters during their completion of the search profile.
„KPMG“KPMG AG Wirtschaftsprüfungsgesellschaft (hereinafter “KPMG”) is a public limited company under German law and a member firm of the global KPMG organisation of independent member firms affiliated with KPMG International Limited (“KPMG International”), a private English company limited by guarantee. KPMG provides audit, tax consulting and business consulting services.
(1) Independence
In its capacity as an audit firm, KPMG is subject to various national and international regulations which aim to ensure independence. KPMG can review the applicability of professional regulations only once the user has registered and submitted a complete search profile. If these independence provisions apply to the user of the KPMG Matchmaker platform, KPMG cannot provide assistance in the form of matching via the KPMG Matchmaker platform. In the event of a negative result, the user is notified accordingly and the creation of the search profile is abandoned / the existing search profile is deleted.
(2) Verification of user data
KPMG carries out measures to verify the identities of users, buyers / investors and sellers / capital-seeking parties in the context of registration and the submission of search profiles by users. KPMG carries out inquiries and research in this context, including from the perspective of KPMG.
In this context, KPMG may contact sellers / capital-seeking parties, buyers / investors and their representatives in writing, electronically (e.g. via the e-mail address provided) or by telephone. In particular, KPMG has the right to request and store suitable evidence from users – including identification documents and proof of permits and authorisations – in written or electronic form. KPMG also has the right to verify this information by means of its own research, external databases, and research services / credit agencies at its own discretion. In particular, KPMG reserves the right to refrain from carrying out registration or taking a user into consideration for matching in the context of the KPMG Matchmaker platform before the full conclusion of the necessary identification and verification measures.
Note for representatives / third-party advisors: It is also possible for third-party advisors (e.g. business consultants, tax consultants, legal advisors, M&A consultants, etc.) to use KPMG Matchmaker for their own clients (sellers / capital-seeking parties or buyers/investors). In order to do so, the third-party advisor in question must present KPMG with explicit evidence of the existence of a mandate from the client, authorisation to use KPMG Matchmaker on the client’s behalf, and the identity document of the client (natural person). The representative / third-party advisor is identified and verified in accordance with the provisions applicable to sellers / capital-seeking parties and buyers/investors.
(3) Matching
The KPMG Matchmaker platform brings parties interested in company acquisitions or investments together with companies in an uncomplicated manner with the aim of facilitating their investment or succession goals. The KPMG Matchmaker platform seeks to bring together sellers / capital-seeking parties and buyers / investors in regard to share sales / company sales and growth financing. The scope of service of the KPMG Matchmaker platform does not include the facilitation of recruitment for management positions.
The provision of information on the KPMG Matchmaker platform by KPMG does not constitute an advisory service. The matching function (an algorithm on the KPMG Matchmaker platform) determines the level of (partial) correlation between the respective search profiles using the information provided. KPMG does not evaluate the content of matching results.
The objective of the KPMG Matchmaker platform is to provide the contact details of the buyer/investor (with its express consent) to the seller / capital-seeking party in the event of a match and corresponding interest from both parties. The seller / capital-seeking party has sole discretion over the decision as to whether and when the seller / capital-seeking party will contact the buyer/investor.
KPMG may also contact the buyer/investor and the seller / capital-seeking party electronically or by telephone for the purpose of quality assurance and/or in the context of matching (e.g. in order to explain the matching process in the event of matches with interested buyers / investors or sellers / capital-seeking parties). In this context, KPMG may also present further opportunities in favour of a cooperation with the respective user.
Upon request, KPMG can provide assistance on the basis of a separate engagement. This can take place during the further course of the process, e.g. for support in regard to the transaction process, decision-making or tax/legal matters. The contact details specified on the KPMG Matchmaker platform can be used for this purpose.
(4) Data protection clause
Registration for the KPMG Matchmaker platform:
The data collected in the context of registration is used for user verification (e.g. name, e-mail address). A search profile can be created after confirmation via the personalised e-mail link.
Search profile creation:
In the context of search profile creation, data is collected and processed for the purpose of identifying the buyer / investor and the seller / capital-seeking party (e.g. contact information, company data, relationship between the acting persons, commercial register extract, power of representation, CV in cases of management buy-in candidates). A copy of the acting person’s identity document must be uploaded in order to verify their identity.
The data collected is processed by KPMG exclusively for internal audit and documentation purposes and in order to fulfil regulatory and professional requirements. Other users of the KPMG Matchmaker platform cannot view this data.
Data processing in the context of the matching process:
In order to keep the establishment of contact confidential, the following information is provided to the seller / capital-seeking party and the buyer / investor in different phases in the context of a match. In the first phase, the confidentiality of
the seller / capital-seeking party is afforded a particularly high level of importance in the interest of protecting its business activities.
Phase 1:
In the event that a match is found between the profile data of the seller / capital-seeking party and that of an buyer / investor, the seller / capital-seeking party then receives information about the buyer / investor. This information is subdivided in the context of use of the KPMG Matchmaker platform into information on the sale of the company and information on growth financing:
Phase 2:
The seller / capital-seeking party then decides whether it is interested in requesting the contact information of the respective buyer / investor and establishing contact.
The following information about the seller / capital-seeking party is forwarded to the buyer / investor only if the seller / capital-seeking party or the person acting on its behalf is expressly interested in establishing contact with the buyer / investor. This information is subdivided in the context of use of the KPMG Matchmaker platform into information on the sale of the company and information on growth financing:
Phase 3:
The buyer / investor is informed that the seller / capital-seeking party is interested in contact in Phase 2. After it expressly consents to this request, its contact information is shared with the seller / capital-seeking party.
If the buyer / investor does not consent to the disclosure of its contact information, it will not be shared with the seller / capital-seeking party.
The provisions of the KPMG data privacy statement also apply.
Information and data deletion:
Please direct any further questions on data processing and the deletion of registration data to de-matchmaker@kpmg.com.
(5) Non-disclosure statement
The KPMG Matchmaker platform facilitates the exchange of the confidential information of sellers / capital-seeking parties and buyers / investors.
The following information constitutes confidential information as referred to in this agreement:
Confidential information does not include information which is generally accessible and known, which the respective other party was already aware of before the conclusion of this agreement, or which has been legitimately disclosed by third parties after the conclusion of this agreement.
The users undertake to handle all confidential information as referred to in this agreement in strict confidence and to take reasonable precautions to prevent third parties (persons which are not party to this agreement) from gaining knowledge of it.
The users undertake to destroy all information that they receive in the context of use of the KPMG Matchmaker platform after discontinuing their use of the KPMG Matchmaker platform. This also applies to all electronic files and information. There is no right to the retention of such materials. This does not apply to information that has been exchanged outside of the KPMG Matchmaker platform on the basis of a separate agreement.
This confidentiality obligation shall continue to apply for a period of three years after discontinuation of use of the KPMG Matchmaker platform.
(6) Use of KPMG Matchmaker
Subject to the restrictions in this agreement, KPMG grants the user a simple right to the use of the KPMG Matchmaker platform within the scope necessary for the use of the KPMG Matchmaker platform. This right of use is limited to the duration of this agreement and can be revoked or terminated at any time.
KPMG Matchmaker can be accessed and used free of charge. KPMG does not derive any claim to commission fees whatsoever from the use of KPMG Matchmaker.
In addition, no evidence whatsoever is provided of the bringing together of the two parties.
There is no entitlement to demand action by KPMG.
(7) Provision
KPMG strives to provide the KPMG Matchmaker platform for use without interruptions to the greatest possible extent within the scope of existing technical and operational possibilities.
KPMG has the right to interrupt use of the KPMG Matchmaker platform at any time, particularly in the event of disruptions of the infrastructure employed, in order to implement technical changes, for maintenance purposes, or in the event of force majeure. In such cases, KPMG will strive to re-enable use of the KPMG Matchmaker platform as rapidly as possible. KPMG is subject to no further obligations in the event of an interruption of use.
KPMG configures the KPMG Matchmaker platform according to its own discretion. KPMG has the right to reduce or expand the scope of its functionalities except where doing so would constitute an unreasonable burden for the user or where the changes in question are not covered by the consent to the conditions or the data privacy consent.
(8) Obligations of the user
The user undertakes to refrain from infringing on rights to the KPMG Matchmaker platform, rights to works or parts thereof which are configured for the KPMG Matchmaker platform and are eligible for copyright protection, or any other industrial property rights of KPMG or third parties, and to refrain from violating statutory provisions, particularly in the context of copyright law.
The user will also comply with all other applicable statutory provisions when using the KPMG Matchmaker platform. In particular, the user will
The obligation to comply with the above provisions of this section will continue to apply indefinitely, even after de-registration of the user from the KPMG Matchmaker platform.
The user will treat their password as confidential and protect it from access by unauthorised third parties. Unless the user notifies KPMG in writing of the loss of their password or the acquisition of their password by an unauthorised third party, the user bears responsibility for any unauthorised use of their username. The user will report any loss of their password or its acquisition by an unauthorised third party to KPMG immediately.
KPMG is not liable for contractual or legal violations committed by users. In the event that the user violates statutory provisions or the usage agreement, KPMG has the right to suspend access without advance notice. If the user violates any of the obligations specified above and/or statutory provisions, KPMG may also demand compensation for the resulting damages, unless the user is not responsible for the violation, and terminate the usage agreement without notice.
(9) Changes to the conditions of use
KPMG has the right to change the usage agreement and will inform the user via e-mail to the e-mail address specified by the user in their profile at least six weeks before changes enter into effect.
Changes are deemed accepted if the user does not object to the changes before the amended usage agreement enters into effect.
In the event that the user objects to a change, KPMG has the right to terminate the usage agreement with the user without notice.
(10) Disclaimer
KPMG will not carry out any further verification of the information of registering parties in the context of the use of KPMG Matchmaker beyond the measures described in this usage agreement.
KPMG assumes no liability for the accuracy or completeness of third-party information posted on the KPMG Matchmaker platform. KPMG will not carry out any further verification in regard to accuracy and completeness. Each user must independently decide what measures to take in order to be convinced of the accuracy and completeness of data and what further information to obtain. The information we provide can by no means serve as a replacement for other research and measures that should be carried out by a buyer or seller in order to form an adequate opinion on the economic situation and other concerns.
(11) General Engagement Terms for German Public Auditors and Public Audit Firms
The basis for this usage agreement is provided by the attached General Engagement Terms for German Public Auditors and Public Audit Firms (AAB) of 1 January 2024.
Attachments: