Please note: This is an English courtesy translation of our original General Terms and Conditions in German language. Please consider that only the original version in German language has legal value.
General Terms and Conditions
micropayment™ AG Lindenhof 4 CH 6060 Sarnen
- General Business
- Special Terms for API
- Rights and Obligations of the Parties
- Billing and Payment
- Remuneration, Reimbursement of Expenses, Retention
- Right of Lien
- Duration and Termination of contract
- Liability, Indemnity
- Data Protection
- Final Provisions, Place of Performance, Jurisdiction
The micropayment™ AG (hereinafter "Service Provider") is a technical service provider specialized in billing services on the internet and the supply of digital content. The Service Provider develops and commercializes online payment systems on cashless payments for national and international markets.
The Service Provider offers a technical platform and the interfaces to settle up chargeable Internet services of the contractual partner (hereinafter: “Merchant”). In addition, the Service Provider tenders the statistical recording and evaluation for the Merchant´s billing information, offers reports and connects the Merchant, if required, to an appropriate banking partner/payment service. To enable these payment settlements, the Service Provider offers the technical services.
- These Terms and Conditions (hereinafter: “GTC”) shall apply from the beginning of the contractual relationship between the Service Provider and the Merchant in the current version for both the present local businesses as well as for all future transactions.
- The GTC can be viewed in multiple languages. All versions are merely a translation of the original in German. Therefore, only the German version is legally binding.
- Performances of the Service Provider are exclusively based on these GTC and will be provided only for entrepreneurs. Entrepreneur is anyone who carries out a commercial or professional activity. Commercial or professional activity shall mean any permanent activity for generating revenue, even if the purpose of earning income is missing.
- Even if acknowledged, conflicting, different or additional conditions will not become a part of the contract between the Parties, unless they are explicitly confirmed in writing. A silence of the Service Provider to divergent offers by a Merchant shall not constitute acceptance of such offers.
- Merchant under these GTCs is the one that integrates the Service Provider´s systems as an entrepreneur on its website in order to market their own content.
- Consumer is the one who uses the technical payment system of the Service Provider by submitting his payment data for offers of the Merchant.
- Banking partner is the one who offers payment services in cooperation with the Service Provider, which may be subject to authorization and must therefore be provided by a bank or an authorized payment institution.
- Revenue is the through the Service Provider billed volume of transactions of the Merchant.
- A contract between Service Provider and Merchant for the integration of a payment system on the Merchant´s website shall be concluded after the successful completion of account creation by activating of the services through the Service Provider. The contract is concluded electronically. The GTC will be part of the contract with the Merchant's registration in the system of the Service Provider.
- The Service Provider shall give the technical performance for the necessary services, in particular the technical infrastructure for the interfaces to enable technical payment processing. For this purpose, the Service Provider offers a technical interface and/or a plug-in as a gratuitous download to install and integrate into the Merchant´s software which allows the settlement of Consumer´s payments. The services allow Merchants to accept transactions using various payment methods.
- For the use of certain payment methods optionally a separate contractual agreement with third parties may become necessary.
- By request, the Service Provider connects the Merchant to one or more necessary banking partners for the payment services for credit card acceptance and/or other payment methods.
- The Service Provider grants a personal, limited, non-exclusive, revocable and non-transferable right (without the right to sublicense) to the Merchant to use the services for the purpose of acceptance of the payment methods.
- The list of accepted payment methods can be found on the website of the Service Provider. The service provider has at any time the right to add or to remove payment methods in its portfolio.
- Certain transactions or methods of payment can be denied or blocked for safety concerns. The Merchant will be informed immediately about the appropriate concerns in that case.
- As part of the registration, the Merchant has to choose a descriptive project name that clearly identifies the Merchant or his business. The project name can appear on the credit card, telephone or mobile phone billing or on the account statement of the Consumer. Should the Merchant not select an appropriate, descriptive project name and should this lead to a dispute regarding a transaction, the Merchant has release the Service Provider from all damages, costs and charges that arise from this dispute.
Special Terms for API
In addition to the finished web solutions for the integration of payment systems the Service Provider also offers a free customizable interface (API-Solution) for the use of some payment methods. The subsequently under 4. regulated additional conditions shall apply for the use of this API-Solution.
- The Merchant will transmit the data necessary for billing and collection of receivables to its Consumer over the provided interface (API). Using this data, the Service Provider will realize the billing and the collection of receivables to the Merchant.
- As part of the submission of collectable receivables, the Merchant is liable for the balance of loans and for the freedom of all defenses and objections of the claims until final settlement. The Merchant is also liable for the fact that the claims are not subsequently altered in its legal existence, in particular not be extinguished by agreement with the Consumer or by contesting or offsetting, and / or that the provided service or otherwise is not according to the Consumer´s contract and the Consumer can therefore make fulfillment, reduction, withdrawal, claim damages for non-performance or rights of retention, unless the Service Provider is responsible for this. Insofar as it becomes aware, the Service Provider will not collect such claims.
- The Merchant is liable for the accuracy of Consumer data. For all collectable receivables, the Service provider shall not be liable to the Merchant. Especially, the Service Provider is not liable in cases of un-collectability, the transmission of false information or non-existent Consumer demands and also not for the risk of insolvency of the Consumer.
- Should the Merchant send fake or non-existent claims or Merchant data, that have been created by himself or by third parties with his knowledge by means of these data to gain himself or a third party an unlawful material benefit or should the Merchant be responsible for such data in any other way, the Merchant has to pay a penalty, which will be set according to the Service Provider`s reasonable discretion and shall be subject to review by the competent court. Further damage claims remain unaffected.
Rights and Obligations of the Parties
- In the context of initiating business between the Parties, an identification of the Merchant by the Service Provider may be required pursuant to the provisions of the Money Laundering Act (GWG). In this case, the Merchant has an obligation to cooperate. The relevant legal transactions between the Parties are concluded in these cases under the suspensive condition of a sufficient Merchant identification and legitimacy according to the specifications of the GWG.
- Every Merchant is obliged to keep the information specified in its registration up to date and accurate and immediately notify a change of his data to the Service Provider at least in textual form. The Service Provider shall not be liable for damages and losses caused by a breach of this duty.
- In particular in the context of project registration, the Service Provider may require a confirmation of the correctness of the information and additional essential information, documents or other evidence about the Merchant at any time. The Merchant has to bring these evidences to the Service Provider without delay.
- The Merchant is solely responsible for the design and content of its websites. The Merchant may use the services of the Service Provider solely for legally binding contracts concluded with its Consumers.
- The Merchant is not entitled to use the services of the Service Provider for content, services or activities, which are not in the ordinary course of its business operations as indicated to the Service Provider, which are prohibited under German law and/or under the applicable law in the respective country of origin or otherwise unlawful or immoral and/or are likely to damage the reputation of the Service Provider or the reputation of the banking partner. The offer of the Service Provider may in particular not be used for the product categories pornography/prostitution, arms trading, gambling, file sharing and/or drugs and/or illegal, improper or inappropriate activities.
- The compliance with the minimum requirements for the safety of Internet payments and with all legal obligations to inform Consumers (e.g. imprint obligations, implementation of the so-called "Button"-solution, information on the SEPA Direct Debit Mandate, privacy information of the end user data) is in sole responsibility of the Merchant. The Merchant has to deal with complaints and/or objections of a Consumer himself and at his own expense and responsibility.
- In the event, that the Service Provider is claimed by a third party about information or data from the websites of the Merchant, the Merchant agrees to release the Service Provider of such claims and to reimburse the costs incurred for legal defense in full or to take over.
- The Merchant is obliged to fulfill all requirements for the prevention of money laundering.
- Self-dealing transactions by the Merchant (e.g. by using a prepaid card) and the assertion of fake or non-existing claims, which are made to gain an unlawful pecuniary advantage for the Merchant or the Consumer, are not permitted.
- The service provider is allowed to examine the offer of the Merchant at any time and to refuse or discontinue the billing of services, which do not meet the regulatory requirements in these GTC in the Service Provider's opinion.
- If a Merchant uses the offer of the Service Provider for unauthorized, improper and/or unauthorized purposes and/or for immoral or illegal activity or content, the Service Provider is allowed to refuse any further payout of any deposits and/or volume of transactions and to immediate shutdown the Merchant access besides to immediately terminate the contract.
- The Merchant agrees that the Service Provider may hand over its legal address to a third party for the purposes of enforcement.
- The Service Provider is entitled to transfer rights and obligations from the contractual relationship to a third party. This is particularly true in the event that the Merchant engages the Service Provider to collect receivables/outstanding demands from its Consumers. The Merchant may transfer rights that have been given to him by the Service Provider only with prior written approval of the Service Provider to third parties. The transfer of those rights without written consent is ineffective in relation to the Service Provider
- The Merchant has to check regularly if news from the Service Provider have been received. Emails may contain links that refer to further information on the website of the Service Provider.
- If interferences occur, the Merchant shall immediately report them to the Service Provider during normal business hours (Mon-Fri 9-17 clock). If the Merchant is responsible for the interference, the costs incurred through the fault clearance must be paid by him.
Billing and Payment
- The Merchant can retrace and analyze all transactions, revenues and shares in a detailed real-time statistic on a web-interface made available by the Service Provider (ControlCenter). In this context, the Merchant is informed that this statistic represents only a forecast of revenue.
- The Service Provider offers the technical handling of the various payment options, chosen by the Merchant. For this purpose the Merchant will receive a monthly billing.
- The Merchant has to claim any errors within four weeks after receiving the billing to the Service Provider in writing. Thereafter, the billing shall be deemed approved.
- All payouts to the Merchant shall be effective under the condition that the corresponding revenue is previously received. In this context, the right to refuse payouts until the payment has been received shall exist.
- Open invoices shall be due upon receipt of invoice for immediate payment by the Merchant. With regard to a SEPA direct debit mandate the deadline for the preliminary announcement (pre-notification) is reduced to the Merchant to one calendar day (24 hours).
- There is the right to withhold a provisional security deposit in the amount of up to 100 % from the payout to the Merchant for a period up to 12 month.
- The service Provider is allowed to charge or offset fees payable to him and other fees of the Merchant and/or future payment receipts and to deduct his claims with the payout to the Merchant.
- Cancellation amounts are shown on the invoice and are deducted from the revenue. If cancellations occur even after contract end, the Merchant has to pay those amounts nevertheless.
- The Merchant may only offset legally determined or undisputed claims against the Service Provider.
- The Merchant is solely responsible for the proper and correct accounting for tax purposes against its Consumers.
Remuneration, Reimbursement of Expenses, Retention
- The remuneration to be paid by the Merchant is resulting from the conditions agreed between the Parties. All prices are understood as net amounts plus VAT in that context.
- The services of the Service Provider will be reimbursed and paid by offsetting with all amounts payable to the Merchant.
- The Service Provider is allowed to readjust prices at change in economic circumstances. In the event of readjustment the Service Provider shall inform the Merchant about the changes at the latest within a period of four weeks to the end of the month in advance via email.
- All expenses incurred by the Service Provider directly or indirectly in connection with this contract are to reimburse to him by the Merchant, insofar as the Service Provider could reasonably consider these expenses as necessary. Such costs are in particular all penalties and/or any other fees, imposed on the Service Provider by a network operator, a service provider or a banking partner due to the agreements to be concluded insofar as these penalties and/or other fees were caused by the Merchant´s offers, as well as any costs of legal defense resulting in this context. The Merchant is aware that penalties and fees can exceed his earnings by many times in individual cases.
- The Service Provider is entitled to charge a reasonable fee of up to 100 EUR per individual case, where the Merchant has violated these GTC or any law and where Consumers complaints against the Merchant must be resolved. The Merchant is not entitled to claim for damages against the Service Provider in this regard. Furthermore, the Service Provider reserves the right to charge a reasonable processing fee in cases of obvious violation of legal and/or GTC terms.
- The Service Provider has the right to refuse the payout of charges entirely or partially, if there are reasonable grounds to suspect that a Merchant or one of its Consumers has committed a criminal offense or if an official investigation was launched against the Merchant or its Consumer. The Service Provider may charge a reasonable processing fee in such cases.
- If any dispute between the Parties or in any other, limiting events by a third party against the Merchant, the Service Provider obtains a right to withhold fees or to offset against fees until the final clarification of the facts. The Service Provider may charge a reasonable processing fee in such cases.
Right of Lien
- To secure all existing, future and contingent claims of the Service Provider and the banking partner against the Merchant arising from this Agreement the Merchant gives a right of lien on any claims on which he is or may be entitled in future under this Agreement (in particular on claims for the payout of balances in favor for him) to the Service Provider and the banking partner. The Service Provider and the banking partner accept the lien.
- The Service Provider releases the lien by inducing the payout. The banking partner releases the lien by paying out the balance in accordance with these GTC.
Duration and Termination of contract
- The contract between the Parties shall be concluded for an indefinite duration. Both Parties can ordinary terminate the contract within a period of four weeks to the end of the month in writing.
- Untouched by the ordinary termination remains the right of the Parties to terminate the contract for cause. An important cause for termination exists in particular, if essential provisions and regulations of the Parties contract shall fail to keep and reported defects are not corrected within a reasonable set deadline. In addition, the Service Provider has the right to immediately terminate a contract if a Merchant uses the offer for abusive purposes or for immoral or illegal activities or content or if a Merchant submits fake or non-existent receivables.
- In the case of insolvency, closure or dissolution of the Merchant´s company the contractual relationship between the Parties will be terminated. In these cases, the Service Provider is entitled to demand the fulfillment of agreements or parts thereof.
- After termination of the contract, the customer can no longer use the payment methods offered by the Service Provider. Until the time of termination payments will still be processed by the Service Provider. The Merchant is obliged to remove the linking of the payment window and the name of the Service Provider after termination.
- In the case of termination or the total or partial annulment of the contract, the Merchant is obliged to return all confidential information of the Service Provider. The Merchant is also obliged to delete all confidential information or to destroy such information immediately and is committed to no longer use them. The Merchant also undertakes to keep the confidential information secret at least one year after termination. Is this obligation violated, the Merchant has to pay a penalty, the amount of which shall be fixed by the Service Provider in its reasonable estimation and shall be subject to review by the competent court.
- The Service Provider shall be liable only if he, his legal representatives, employees and/or agents have acted with intent or gross negligence. The liability is limited to the typical contractual damage, which occurrence the Service Provider could have foreseen when the contract was concluded in the circumstances known to him at this time.
- The limit does not apply in case of breach of fundamental contractual obligations. Fundamental contractual obligations are those obligations to understand that one Party has to grant the other Party just for meaning and purpose of this contract or those obligations whose fulfillment is essential to the proper execution of the contract and on whose fulfillment the respective other contractual partner regularly can rely on. In this case, the liability of the Service Provider is limited to typically predictable damage at the time of conclusion of the contract.
- The Service Provider shall only be liable for breach of contract, if the Merchant promptly, properly and in writing submits the non-performance or poor performance to him and at the same time gives a reasonable time to remedy the breach and the breach continues after the deadline.
- A legally required fault liability remains unaffected by the foregoing limitation of liability. The same applies to the liability of the Service Provider in case of culpable injury to life, limb or health.
- Insofar as the liability of the Service Provider is effectively excluded or limited, this also applies to the personal liability of its vicarious agents, in particular the employees and other employees of the institutions and representatives of the Service Provider.
- In cases of data loss, the liability of the Service Provider is limited to the cost of restoring the data based on the periodically backed up data, the Merchant has to produce, regardless of whether such a backup copy exists or not.
- The Service Provider shall not be liable for any interruption or impairment of duties to be provided by him. Condition is that this interruption or impairment based on unusual or unforeseen circumstances which are beyond the control of the Service Provider. This refers to particular events due to force majeure, labor disputes, government action, technical changes to the equipment of the partners of the Service Provider or events that are within the responsibility of third parties.
- From the moment of the delivery of software, information files or data that is provided to the Merchant via telecommunication channels or data-transmission systems, electronically available, all the risks and the risk of loss or deterioration is passed to the Merchant.
- The Service Provider shall not be liable for the use of modified software, if the modification was not implemented or the modification was not delivered or made available by him and for the use of software in some other way, for which the Service Provider´s software was not developed or intended. The Merchant so far releases the Service Provider from any liability.
- The Service Provider gives information, especially statistics and newsletters to the Merchant, does, however, not guarantee that the data always corresponds to the latest state. The Service Provider reserves the right to make changes or additions of these information without prior notice. The Service Provider shall, if permitted by the applicable laws, not be liable for damages incurred in connection with the use of information. This also applies to all directly or indirectly connections ("links") on the website of the Service Provider. The Service Provider is also not responsible for the content of a page that is reached via such a link.
- The Merchant releases the Service Provider from any liability for the use of any product-, project- and/or domain-name, which was registered by him and which violates the trademark or other rights of third parties. As far as damages arise for the Service Provider due to these duties, the Merchant is obliged to pay compensation for such damage. The Service Provider is entitled to offset appropriate third party damage claims against claims of the Merchant.
- The Service Providers offer for Merchants is limited exclusively to the billing of services on behalf of each Merchant. The Merchant is solely responsible for the design and content of his website, that is, he is solely responsible for its website and is solely liable for any infringement of third party rights. In this respect, the Merchant releases the Service Provider from any liability.
- The Service Provider will only store and process personal data when it is permitted and required to perform the contractual relationship between the Parties and in accordance with the relevant legal regulations.
- Both Parties undertake to maintain confidentiality with regard to contractual agreements and all information about the other Party, which have or will become known in connection with the contractual relationship. The obligation of confidentiality includes definitely technical, legal, financial, operational and business information about the other Party. The Parties shall ensure that the same confidentiality obligation is imposed on their employees and third parties who employ them and who have access to such confidential information.
- If the Service Provider should provide access- or identification-codes for data processing to the Merchant via telecommunications- or data transmission systems, the Merchant is obliged to keep these indefinitely secret and to disclose them to authorized employees only.
Final Provisions, Place of Performance, Jurisdiction
- Agreements that differ from these GTC shall only be effective in writing.
- The place of performance is the registered office of the Service Provider.
- The exclusive place of jurisdiction for all legal disputes arising from this contractual relationship is the place of business of the Service Provider, if the Merchant is an entrepreneur, a legal person under public law or public special fund, unless mandatory provisions require the contrary.
Date of Issue: 10/15/2015 Version: VII-10-15/15