PAY.ON AG
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GENERAL TERMS AND CONDITIONS OF PAY.ON AG | ||
1 |
Scope of Application
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| 1.1 | These General Terms and Conditions shall apply to all contracts entered between PAY.ON and a CLIENT for services to be rendered by PAY.ON, unless otherwise provided for in an individual agreement.
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| 1.2 | These provisions shall apply exclusively to business transactions with companies.
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| 1.3 | The contract shall be formed with the inclusion of these General Terms and Conditions.
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| 1.4 | These General Terms and Conditions shall apply exclusively. Contrary or varying terms and conditions of a CLIENT shall not be part of the contract and not be recognized unless PAY.ON has expressly consented to their application. This shall also apply if PAY.ON performs its services without reservation knowing of the contrary or varying terms and conditions of the contracting partner.
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2 |
Scope of Services, Rendering of Services
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| 2.1 | Type, content and scope of services to be rendered by PAY.ON are set forth in the contract and the specifications of service and/or product by PAY.ON underlying the respective contract.
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| 2.2 | In case of doubt, statements by employees of PAY.ON or third parties as well as advertising statements shall only constitute a claim of the owed performance only if they have been confirmed in writing by PAY.ON. In case of doubt, statements regarding the quality of the contractual services shall constitute a guarantee only if they have been expressly designated as such.
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| 2.3 | PAY.ON shall be authorized to change and adjust the content of its services, in particular of software made available within the scope of technological, user-interface or content enhancements, provided that the agreed functionalities are not restricted or impaired.
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| 2.4 | The Parties have agreed that PAY.ON shall be entitled to subcontract the development of the contracted Payment-Systems in parts and/or the adjustment of software components of which the contractual Payment-Systems are composed of or are connected to, to third parties providing commissioned development work and which do not perform payment services, without being obliged to inform the CLIENT. However, PAY.ON shall only subcontract the development of the contracted Payment Systems in parts and/or the adjustment of software components of which the contractual Payment Systems are composed of or are connected to, to third parties, if the CLIENT's interests in regard to security and confidentiality are safeguarded to the customary industry standard extent. | |
3 |
Payment Terms
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| 3.1 | All prices are net prices and are subject to value-added tax, customs and other charges, where applicable.
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| 3.2 | An expense-dependent compensation will be calculated by PAY.ON based on the payment transaction data and Fraud Control operations determined by PAY.ON and shall be invoiced at the end of the month for the current month.
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| 3.3 | CLIENT shall pay the invoice amounts due immediately after receipt of the invoice without discount to the account stated in the invoice.
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| 3.4 | CLIENT must notify PAYON in writing within six (6) weeks after the receipt of the invoice of any objections to such ("Objection Period"). After the expiration of the Objection Period, the invoice shall be deemed approved. PAY.ON shall state the deadline for objections and the consequences of late objections in the invoice.
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| 3.5 | The general rule shall be: Offsets against accounts receivable of PAY.ON are only allowed against uncontested or finally adjudicated counterclaims. In case of the existence of defects, CLIENT is only entitled to withhold payment to the extent the withheld amount does not exceed the lower of the value of the service affected by the defect or the expected.
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4 |
Late Payments
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| 4.1 | If CLIENT is in default with payment of two consecutive monthly invoices, PAY.ON shall be entitled to block access to the performances that are subject of the contract. CLIENT shall in this case continue to be obligated to pay the agreed, use-independent compensation.
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| 4.2 | If CLIENT has been in default a) for two consecutive months with the payment of the respective monthly invoices or b) within a period that extends over more than two months with the payment of compensation in an amount that reaches the agreed use-independent compensation for two months PAY.ON shall be entitled to terminate the contract without prior notice and to demand immediate payment of lump-sum damages in an amount of twice the remaining use-independent compensation for the remaining regular contract term. The damage amount shall be higher or lower depending on whether PAY.ON proves higher or CLIENT proves lower damages. PAY.ON reserves the right to assert additional damages for default. | |
5 |
Term and Termination
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| 5.1 | The contract shall become effective upon its signing and shall have the contractually agreed term.
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| 5.2 | The possibility to terminate for cause shall remain unaffected. Cause exists if in view of all the circumstances of the individual case and weighing the interests of both parties the continuation of the contractual relationship until the end of the agreed term is unreasonable. Each party shall be entitled to terminate for cause in particular if: a) the other party is or will be unable to pay or is over indebted, if insolvency proceedings have been instituted against it and have not be denied as unfounded or insolvency proceedings have been denied for lack of assets; b) the other party is in gross violation of contractual obligations and does not remove the violation upon written request within a reasonable period. A warning setting a deadline is not required if the continuation of the contract is unreasonable on account of the severity of the violation, if no success can be expected or the immediate termination appears justified weighing the mutual interests. | |
6 |
Grant of Rights
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| 6.1 | PAY.ON shall be entitled to all use, know-how and other protected rights to the contract services. For the term of this contract PAY.ON grants CLIENT a restricted, non-exclusive, non-transferable use right to the extent the use right is required for the agreed use of the services. In this context, the CLIENT is also entitled to grant the necessary options of use to its clients.
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7 |
Duties and Responsibilities of CLIENT
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| 7.1 | CLIENT shall be responsible that the prerequisites for rendering the services and the maintenance and monitoring of the services by PAY.ON set forth in the specifications of service or product are met.
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| 7.2 | CLIENT shall be obligated to properly cooperate in the rendering of the contractually agreed services. In this context the special situation of software and IT services and projects must be considered, which in view of their regular high complexity and CLIENT focus require close and trusting cooperation between the contracting parties. The cooperation of CLIENT is therefore a material contract obligation. CLIENT shall provide all necessary prerequisites for the rendering of the services by PAY.ON that have been agreed on (see e.g. the Standard Operating Procedure Agreement – SOP) or that are within its scope.
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| 7.3 | Without being requested to do so and in a timely manner CLIENT shall notify PAY.ON of all circumstances and events, which are relevant for the rendering of the agreed services.
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| 7.4 | CLIENT shall be exclusively responsible that the services offered by him comply with the applicable laws and other applicable provisions.
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| 7.5 | CLIENT shall take appropriate measures to prevent that his contract partners, in particular retailers, abuse the services rendered by PAY.ON for criminal purposes. CLIENT shall ensure that a contract partner shall not use the services rendered by PAY.ON for illegal transactions, such as a) money laundering or tax evasion; b) handling of transactions requiring a permit without the corresponding permit; c) distribution of child pornography; d) distribution of medication or medical products that have not been accredited. CLIENT shall be obligated to immediately block the access of a contract partner if he obtains notice of the handling of criminal transactions through the services of PAY.ON. In such case, CLIENT shall also be obligated to immediately notify PAY.ON and the competent authorities. PAY.ON shall be entitled to take all measures required to cease the illegal acts and to block the access of the respective contract partner if CLIENT does not immediately initiate the blockage. | |
| 7.6 | In case claims are asserted by third parties against PAY.ON and these claims are caused by a violation of duties of CLIENT, CLIENT shall hold PAY.ON harmless from these claims and reimburse PAY.ON for all damages incurred in connection with this including statutory – and if there is no statutory provision – market standard attorneys’ fees.
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8 |
Availability of Service
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| 8.1 | PAY.ON warrants the contractually agreed availability of service. However, this does not constitute a respective guarantee.
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| 8.2 | Prerequisite for CLIENT’s claims in case of availability downtimes is always that CLIENT immediately notifies PAY.ON of the downtime and – to the extent possible and reasonable – has documented this in an understandable manner so that PAY.ON can check the cause of the respective downtime.
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| 8.3 | PAY.ON is not liable for availability downtimes caused by force majeure. Theft, general Internet downtimes or other circumstances shall be treated as force majeure, if they are unforeseeable, severe and have not been caused by any fault of PAY.ON. PAY.ON shall, if this is possible and reasonable under the circumstances, immediately notify CLIENT about the occurrence of such an event. PAY.ON shall do everything within its control to achieve a fast removal of such downtimes.
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| 8.4 | PAY.ON shall not be liable for any availability downtimes caused by CLIENT, the telecommunication service provider, the access provider or the mobile phone provider of CLIENT or which are otherwise attributable to third parties within the sphere of CLIENT.
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9 |
Warranty
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| 9.1 | PAY.ON warrants that the services owed comply with the requirements described in the contract and the underlying specifications of services and/or product. In addition, PAY.ON warrants that the services are connected to the Internet. In these Terms and Conditions, a warranty comprises the rights subject to “Gewaehrleistung” according to German Law. In particular, no compensation for damages may be claimed without PAY.ON’s fault, unless otherwise stipulated or provided for by German Law.
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| 9.2 | If the services owed by PAY.ON deviate from those provided for in the contract, CLIENT shall immediately notify PAY.ON of the defect with a detailed description of the defect and the circumstances under which it appeared. CLIENT shall, if possible, prepare and provide a screenshot of error reports and/or of the appearance of the defect to PAY.ON. PAY.ON shall immediately remove the defect. CLIENT shall use his best efforts in supporting PAY.ON in such cases.
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| 9.3 | CLIENT’s right of termination for non-provision of use pursuant to § 543 par. 2, 1st sentence, item 1 of the German Civil Code [BGB] is excluded, unless the provision of the contractually agreed usage must be considered to have failed. The failure to provide the contractually agreed usage shall apply at the earliest if PAY.ON has not removed a material defect within three weeks after receipt of the notice of defect or provided a corresponding workaround with CLIENT having properly provided the cooperation services required in this context. CLIENT may not terminate the contract for minor defects.
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| 9.4 | The liability regardless of fault of PAY.ON as lessor for defects existing at the time of the execution of the contract (§536a par. 1 case 1 of the German Civil Code [BGB]) is excluded.
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| 9.5 | The provisions of the German Civil Code governing rental agreements (§ 535 et seq. BGB) shall additionally apply.
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10 |
Confidentiality
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| 10.1 | The contracting parties agree not to disclose operating and business secrets that they – or their vicarious agents – receive in connection with the negotiation and performance of the contract. This obligation does not apply to information, knowledge and experiences, which i) are shown to be generally known without violation of this confidentiality obligation, j) have been known to the parties before receipt of the information, knowledge and experiences, k) have been received from a third party without any obligation to confidentiality or l) are shown to have been independently developed. | |
| 10.2 | The party relying on the above exceptions carries the burden of proof for the existence of the exceptions.
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11 |
Liability
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| 11.1 | The provisions below shall only apply, if no other liability results from the contract entered between the parties.
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| 11.2 | PAY.ON shall be liable without restriction according to the statutory provisions for damages of CLIENT caused by intentional or gross negligent conduct of PAY.ON or its vicarious agents. The same applies to personal injury and damages according to the German Product Liability Act.
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| 11.3 | The further liability of PAY.ON for damage claims is restricted in accordance with the following provisions unless a guarantee assumed by PAY.ON provides otherwise: m) PAY.ON is only liable for slight negligence if the damages have been caused by the violation of a material contract obligation (cardinal duties). Cardinal duties are such contractual obligations whose performance is required for the proper implementation of the contract and upon whose compliance CLIENT could rely. To the extent PAY.ON is liable for slight negligence, its liability is restricted to the typically foreseeable direct damages. n) The liability of PAY.ON for damages caused by loss of data and/or programs lost by slight negligence is limited to the typical cost of restoration, which would have been incurred in case of regular and appropriate data backup by CLIENT. | |
| 11.4 | The provisions of the above paragraph apply correspondingly to the limitation of damages for unsuccessful expenses (§ 284 of the German Civil Code [BGB]).
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| 11.5 | The above liability restrictions shall also apply to vicarious agents of PAY.ON.
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12 |
Cooperation of Parties
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| 12.1 | The parties shall cooperate in the implementation of this contract in the spirit of trust.
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| 12.2 | No partnership or corporate relationship shall be established between the parties by this contract
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13 |
Support on Termination
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| 13.1 | In the event of the termination of the contractual relationship, regardless which Party gives notice of the termination - excluding the extraordinary termination of the contract for cause by PAY.ON – and in all cases of consensual termination of the contract, PAY.ON shall support the CLIENT to reasonable extent with services and supporting measures, to enable the CLIENT to have the contractual payment system operated by a third party. Especially, PAY.ON shall submit to a third party all data necessary for this purpose and at PAY.ON’s hand within four weeks after notification of the termination, if such third party disposes of a server environment that is certified according to PCI-standard and fulfills all additional legal and regulatory requirements for the data transfer. Prerequisite for the data transfer is that the CLIENT submits to PAY.ON the following information and documents: Name and contact data of the new operator, proof of its valid PCI-certification, detailed information, which data are required (“columns” of the .csv file). PAY.ON will make efforts that the data, being transferred from its own software platform to the software platform of the third party, are compatible to the structure of data of a third party’s software platform. PAY.ON shall submit the data in .csv format.
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| 13.2 | The COSTUMER shall compensate the services performed by PAY.ON within this context on a time and expense dependent basis, based on a flat hourly rate of € 150.00, VAT excluded.
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| 13.3 | PAY.ON’s obligation to support the CLIENT pursuant to para. 1 expires, if the CLIENT does not name a third company complying with the requirements of para. 1 to which the data shall be submitted at the latest two weeks prior to the ending of the contract or, in the event of a justified extraordinary termination by the CLIENT, at the latest four weeks after receipt of the extraordinary termination.
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14 |
Modifications of these General Terms and Conditions
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| 14.1 | Modifications of these Conditions shall be notified to the CLIENT in text form and any differences in regard to the version previously in force shall be particularly highlighted. The CLIENT may object to such modifications according to sect. 14.2
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| 14.2 | The CLIENT’s objection according to sect. 14.1 shall be directed to PAY.ON via email to the address account@payon.com or in the written form and within 4 weeks after reception of PAY.ON’s notification concerning the Conditions’ modification (hereinafter „Modifications“). To comply with the time limit, the objection must be received by PAY.ON within the time limit. If the CLIENT does not object in due form and time, the Modifications shall be deemed accepted and the modified Conditions shall become integral part of the contract. PAY.ON Modification notice will expressly refer to this and to the form and term of the objection. In the event of an objection in due form and time, the contract will remain in force in its unaltered version. In this case, PAY.ON may terminate the contract for cause with a period of four weeks with a written notice to the CLIENT, if for PAY.ON the adherence to the unmodified contract is economically or technically impossible or cannot reasonably be expected.
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15 |
Final Provisions
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| 15.1 | There are no oral or written side agreements to the contract. Modifications or amendments of the contract, other than those subject to sect. 14 must be in writing to be effective. This also applies to the waiver of the written-form requirement.
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| 15.2 | Claims under a contract between PAY.ON and CLIENT may only be assigned with the prior written consent of the respective other party.
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| 15.3 | This contract and/or any non-contractual obligations, is subject to the laws of the Federal Republic of Germany excluding the United Nations Convention on the International Law of Sales (CISG). Place of performance and of jurisdiction shall be Munich.
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| 15.4 | The principal place of business of PAY.ON shall be the exclusive venue for all current and future claims from a business relationship with merchants, public law legal entities or special public law funds. The same venue applies if CLIENT does not have a domestic general venue, moves his residence or usual place of abode to another country during the term of the contract or his residence or general abode is unknown at the time suit is filed.
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| 15.5 | The English translation of these General Terms and Conditions shall only serve the better understanding and is intended as a reading version. In case of ambiguities, the German version shall prevail.
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| 15.6 | If one or several of the provisions agreed on between the parties is invalid or shall become invalid, this shall not affect the validity of the remaining provisions. Instead of the invalid provision the parties shall be deemed to have agreed to a valid provision which, within the legally possible, comes as close as possible to the originally agreed purpose of the parties as to location, time, measurement and scope of application. Gaps in the contract shall be completed in accordance with what the parties would have agreed on in view of the factual and legal situation and the justified interests of the parties if they had been aware of the fact that the issue had to be provided for in the contract. This also applies if the invalidity of the provision results from the service or time (date or period) provided for in the contract. In that case a legally permissible service or time (date or period) shall be deemed to have been agreed on that comes as close as possible to the agreed on service or time. This clause does not apply to these General Terms and Conditions.
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