General Terms and Conditions

General Terms and Conditions of transact Elektronische Zahlungssysteme GmbH, Martinsried, (hereinafter:transact) for payment-services (hereinafter:”GTC”)
As of: 10/01/2013

1. Scope and treaty changes

1. These Terms and Conditions shall apply to the payment service contracts concluded between the merchant and transact, on the basis of which transact provides services relating to the processing of card payments and sells or rents payment terminals, other hardware products (hereinafter both:hardware) and/or payment transaction software (collectively for all collectively: “payment systems”).”

(2) Amendments to these General Terms and Conditions and other provisions of the Payment Service Contract shall be offered to the Trader in text form no later than two months before the proposed date of their effective date. The trader’s consent shall be deemed to have been granted if he has not indicated his refusal before the proposed date of effect of the amendments. The deadline shall be respected if the trader sends his rejection to transact before the proposed date of the changes taking effect. transact will draw particular attention to this approval effect in its offer. If the merchant is offered changes to payment services (e.g. submission to a transact account according to Paragraph 3(3) (4)), it may also terminate the payment service concerned by this before the proposed date of effect of the amendments free of charge and without notice. transact will draw the trader’s attention to this right of termination in its offer. All other services to be provided under the payment service contract (e.g. rental of hardware) shall remain subject to termination under this paragraph. (2) untouched.

2. Conditions of the credit industry

For the processing of card transactions in the electronic-cash procedure or in the money card procedure, the conditions for participation in the electronic-cash system or the conditions for participation in the system money card of the German credit industry apply in addition to these GTC.

3. Processing of card payments

1. In the case of payments by means of a domestic ec card, the payment system shall trigger a payment transaction in the procedure (electronic cash or electronic direct debit) requested by the merchant, in accordance with the configuration requested by the merchant. In the case of payments by credit card, Maestro card or money card, the payment system triggers a payment transaction in the respective payment procedure if the processing of such payments has been agreed within the framework of the payment service contract.

(2) In the case of payments by electronic-cash as well as by means of one of the credit cards, a money card or a Maestro card mentioned in the contract, transact transmits the authorization requests received by the payment system and the authorization responses of the authorization centre responsible for the respective card (authorization centres of the credit institutions or the credit card companies commissioned by the merchant by means of a separate contract) between the respective payment system and the authorization centre. transact is not responsible for the correctness of the content of the transmitted information in all payment procedures, but exclusively for the forwarding of the authorization information received without any content.

(3) transact forwards on behalf of the trader the transaction records successfully transmitted by the trader via the payment system to transact on the following business day via remote data transfer to the recipient address agreed with the trader (submission to a merchant account).

4. As an alternative to paragraph (3), transact may, at its reasonable discretion and taking into account the merchant’s bank details, submit the direct debits resulting from the transaction records to a credit institution’s own account only when processing payment transactions by means of a domestic ec card. In this case, transact immediately redirects the payment amounts credited to transact’s account to the account designated by the merchant (submission to a transact account). A period of three business days from the date of credit to transact’s account is agreed; from 1 January 2012, a period of one business day shall apply. The forwarding of the payment amounts is subject to redemption of the direct debits submitted for the trader. If direct debits are not redeemed or re-charged, transact may demand compensation from the trader for the conditionally forwarded payment amounts and resulting expenses.

(5) transact as trustee shall act as trustee for the trader as trustee of the following paragraph. (4) deposit accepted payment amounts in one or more escrow accounts with one or more German credit institutions. These escrow accounts are held in the name of transact as open escrow accounts within the meaning of Section 13 para. 1 Set 2 No. 1b ZAG. transact will inform the credit institutions that maintain the open escrow accounts of the fiduciary relationship. transact will ensure that the post-paragraph (4) received payment amounts will be attributable to the trader at any time in terms of accounting and will never be mixed with the sums of money of persons other than the payment service users for whom they are held, in particular not with their own amounts of money. Transact is permitted to withdraw amounts in the amount of claims in favor of transact against the trader from the escrow accounts. transact must inform the trader, upon request, of which credit institution and on which escrow account the following (4) the amounts of payment received are deposited in each case, whether the credit institution, the (4) deposit the amounts received, belong to a body to secure the rights of depositors and investors and to what extent those payment amounts are secured by that entity.

(6) The data consisting of Section 675d para. 1 Sentence 1 of the German Civil Code (BGB) in accordance with Art. 248, Section 3-9 of the EGBGB, transact’s information obligations are waived and do not apply to the services to be provided by transact.

4. Hotline, maintenance, master data changes

(1) transact provides the dealer with a hotline service for fault reports and questions, which can be reached at the following times:

• Monday to Friday 07:00 to 23:00
• Samstag Saturday 07:00 to 23:00
• Sunday and public holidays 10:00 a.m. to 8:00 p.m.

This hotline service helps the merchant to correct minor malfunctions in the payment systems. The trader is available to carry out the fault removal to the necessary extent and is obliged to observe and follow instructions and instructions of transact for problem analysis and error determination.

transact is independent of the amendment reservation in clause 1 paragraph. (2) to change the above-mentioned hotline times. The current hotline times are available on the Internet at www.epayworldwide.de and are also communicated to the retailer on request.

(2) If a technical fault on a hardware cannot be rectified with the help of the hotline service referred to in paragraph (1), transact will replace the corresponding hardware by sending a replacement hardware while simultaneously retrieving the non-functioning hardware. transact bears the costs of the replacement (standard shipping only), including the cost of the replacement hardware, provided that the fault was not caused by improper use, operating errors, vandalism, sabotage, fire, lightning, power failure, temperature fluctuations, electromagnetic interference, radio signal interference, water damage or moisture damage. If there is one of the above cases, the dealer shall reimburse transact for the costs incurred for the repair of the non-functioning hardware, including the cost of retrieving the non-functioning hardware.

(3) Re-registrations and master data changes are invoiced on a flat-rate basis in accordance with the contractual agreements. Other adjustments to payment systems are not covered by this Contract.

5. Special rules for renting hardware

(1) The dealer is not entitled to sublet the hardware rented by transact.

(2) The trader is obliged to return transact at the end of the payment service contract all items (in particular accessories left to him) without request and at his own expense.

6. Special rules for the sale of hardware

(1) Hardware purchased by transact remains the property of transact until full payment is made.

(2) Claims of the trader for supplementary performance are limited to a delivery of a defect-free replacement hardware. The trader reserves the rights to withdraw from the contract or to be reduced.

7. Rights to use software

(1) Insofar as transact rents software to the trader on the basis of the payment service contract, transact grants the trader a non-exclusive right to use this software on a data processing unit (single-seat license) limited to the rental period. The trader is not entitled to leave the software to a third party for use.

(2) Insofar as transact sells software to the trader on the basis of the payment service contract, transact grants the trader an unlimited, non-exclusive right to use this software on a data processing unit (single-user license). The trader is only entitled to transfer the software to third parties if he completely and definitively abandons his own use.

(3) Any duplication, reworking and decompilation of the software is permitted exclusively within the scope of the statutory provisions (Section 69a ff. UrhG).

8. Obligations of the trader

1. The trader shall be obliged to provide transact at his own expense with all the information necessary to initialise and maintain the operation of the payment systems.

2. The trader shall be responsible for creating the necessary spatial, technical and other connection conditions for the operation of the payment systems in good time before delivery; this includes in particular the presence of Schuko sockets, telephone connections and any required cash register interface. If the merchant installs the payment systems supplied by transact himself, he must observe the installation instructions provided by transact.

3. The trader shall establish with his credit institution the necessary contractual basis for the submission of direct debits to the merchant’s account.

(4) The trader is obliged to notify transact in writing immediately of any disruption, defect, damage and the assertion of rights by third parties.

(5) The trader is obliged to check all invoices issued to him as well as the correct crediting of the transactions processed via the payment systems without delay and to assert any objections without delay, at the latest within five business days after the settlement date.

The trader may assert his claims for the submission of transaction records and for crediting received payment amounts only within a three-month exclusion period after the transaction is transmitted to transact.

6. The card shall be read in for all types of transactions via the respective payment system. The transfer of the transaction records is completed by a cash cut to be made by the trader. The trader will notify transact no later than the business day following the purchase process if the transfer of the transaction records could not be completed or not completed in full. For all transactions that have not been transferred or have been transferred incorrectly, the trader will send the required transaction records to transact again at his own expense.

(7) If transact provides the merchant with SIM cards for the use of payment systems using the GPRS standard on the basis of the payment service contract, the merchant may only remove these SIM cards from the payment systems with the express approval of transact. In the event of termination of the payment service contract, the trader shall return the SIM cards made available to him without request and at his own expense to transact.

9. Term and notice period

(1) The payment service contract begins with the acceptance of the dealer’s contract offer by transact and has the minimum term agreed in the payment service contract. At the end of the minimum term, the payment service contract shall be extended for a further 12 months if it is not terminated by one of the parties with a period of three months at the end of the respective contract term.

(2) An ordinary termination is required before the expiry of the (1) agreed term is not possible. In particular, the dealer’s right of termination at any time is determined in accordance with Section 675h para. 1 BGB excluded. If transact should nevertheless agree to an early termination of the payment service contract in individual cases, transact is entitled to charge the trader for the disadvantages resulting from this. In the case of the rental of hardware or software, this disadvantage amounts to 50% of the sum of the rental interest incurred up to the end of the ordinary contract term and the monthly lump sum for billing technology, hotline and exchange service agreed until the end of the ordinary contract term. In all other cases, this disadvantage amounts to 100% of the monthly lump sum agreed until the end of the ordinary contract term for billing technology, hotline and exchange service. The trader reserves the right to prove a lower transact of proof of a higher disadvantage.

(3) The right to terminate this contract for good cause remains unaffected by both parties. An important reason in this sense, which entitles transact to an extraordinary termination, exists in particular if:

• the merchant has not fully complied with its payment obligations under this contract for at least two consecutive months, or
• the approval of transact as a network operator for the electronic-cash system expires.

Termination of this contract shall not affect any claims for damages of the parties.

10. Fees and terms of payment / Set-off

(1) The fees to be paid by the trader for the services provided under transact’s payment service contract and the terms of payment are the result of the contractual agreements. transact may, at its reasonable discretion (Section 315 of the German Civil Code), amend fees for services that are typically used permanently in the context of the business relationship and after prior notification. In the event of an increase, the trader may terminate the business relationship concerned withimmediate effect within six weeks of notification of the increase if transact does not offer the trader, despite being requested before submitting the notice of termination, to maintain the existing remuneration scheme. In this respect and in the event of termination, the increased fees will not be used.

(2) Transact may determine the amount of the remuneration at its reasonable discretion (Section 315 of the German Civil Code) for services not listed in the contract which are carried out on behalf or in the alleged interest of the trader and are normally only to be expected against payment of remuneration. This includes, in particular, adjustments to software and hardware that are required due to changed legal requirements or changes in requirements of the credit industry or credit card companies.

(3) In addition to the fees in accordance with paragraph 3, (1) and (2) the trader must reimburse transact all expenses incurred by transact for the purpose of the execution of the contract, insofar as transact was entitled to deed them as necessary. This includes, in particular, electronic-cash authorisation fees to be paid to the credit industry, as well as postage costs and expenses.

(4) transact shall calculate all recurring fees and reimbursement claims to be paid by the trader pursuant to this contract in the context of a monthly settlement Off. The fees to be paid by the trader to transact and Claims for reimbursement of expenses are due for payment. transact will collect the invoice amount from the account indicated by the merchant after sending the monthly invoice by direct debit, provided that the merchant has granted transact a direct debit authorisation.

(5) transact shall pay all one-off charges payable by the trader under this contract to transact in the event of the provision of services. The fees to be paid by the trader to transact are due for payment upon receipt of the invoice.

transact will collect the invoice amount from the account indicated by the merchant after sending the invoice by direct debit, provided that the merchant has granted transact a direct debit authorisation. In addition, transact is entitled to pay its dues from the fees referred to in clause 3 paragraph. (4) to deduct amounts to be forwarded.

(6) The trader can only offset against claims of transact with undisputed or legally established claims.

11. Liability

(1) transact shall be liable to the trader in full for intent and gross negligence. transact is solely liable for any other negligent action

• Personal
• damages for which transact is to be entitled due to mandatory legal regulations, and
• Damages due to the violation of essential obligations that jeopardize the achievement of the purpose of the payment service contract or whose fulfilment enable the proper execution of the payment service contract and on which the trader may regularly rely (cardinal obligations).

In the event of a breach of cardinal obligations, liability for simply negligent actions by transact is limited to contractual damages that are typical of the contract and foreseeable at the time of conclusion of the contract.

(2) transact shall not be liable for damages resulting from interruptions or restrictions of operation due to necessary maintenance work, force majeure or other events for which transact is not responsible.

(3) Paragraph. (1) and (2) shall also apply in the event of a non-execution or incorrect execution of a payment transaction. transact does not have any liability independent of any fault. By way of derogation from sentence 1, transact’s liability to the trader for damage caused by non-execution or incorrect execution of a payment transaction, which is not covered by Section 675y of the German Civil Code (BGB), is limited to EUR 12,500. This does not apply to intent and gross negligence and to dangers that transact has specifically taken over.

12. Confidentiality

The parties undertake to keep secret all data and information obtained from the joint cooperation, to protect against unauthorized access and to use it exclusively for the performance of this Agreement.

13. Final provisions

(1) transact is entitled to use third parties as vicarious agents for the performance of this contract.

(2) German law applies to the business relationship between transact and the trader.

(3) The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract is Munich.

(4) Cancellation statements, amendments or additions to this contract, including the annexes to this contract, must be made in writing. This also applies to the renunciation of this written form requirement.

(5) transact’s sales representatives and sales representatives shall not have the power to make representations and to conclude ancillary agreements that deviate from the provisions of the payment service contract. Section 305b of the German Civil Code (BGB) remains unaffected by this.

(6) Should the contract, including the attached annexes, be or become ineffective in individual respects, the remaining provisions shall remain unaffected. The ineffective points shall be replaced or supplemented by effective new ones which come closest to the economic purpose pursued by the parties. This applies accordingly to gaps in contracts.