1.1 RatePAY GmbH („RATEPAY“) is a payment institution that is constantly supervised and officially licensed by the German Federal Financial Supervisory Authority (BaFin). RATEPAY offers individual solutions in the field of online payment for a variety of online retailers („MERCHANT(S)”). The service portfolio of RATEPAY includes the acquisition of the entire payment process and the acquisition of the payment default risk for purchased claims in accordance with the following provisions. For this purpose, RATEPAY offers its own payment methods for integration into the Internet service operated by the MERCHANTS („ONLINESHOP“). The payment methods offered by RATEPAY („PAYMENT METHOD(S)“) include payment by invoice, payment by SEPA direct debit, prepayment, and, in cooperation with the partner bank of RATEPAY, payment in instalments. Contractors of MERCHANTS who purchase goods or services in the ONLINESHOP („CUSTOMER(S)“) may use the PAYMENT METHODS to settle the purchase price claim.
1.2 RATEPAY provides all services exclusively based on these General Terms and Conditions („GTC“), which are part of the Merchant Agreement. The MERCHANT acknowledges the validity of the current version of the GTC with the conclusion of the Merchant Agreement. The validity of deviating terms and conditions is excluded, even if RATEPAY should not explicitly contradict this.
1.3 These GTC govern the general performance of RATEPAY as well as the special conditions for the PAYMENT METHODS contractually agreed with the MERCHANT. Additional special terms and conditions for the MERCHANT become part of the Merchant Agreement through separate written agreements between RATEPAY and the MERCHANT („SIDELETTER“) and shall prevail.
2.1 RATEPAY provides the MERCHANT with an integration document which states RATEPAY’s General and Product-related Minimum Requirements („GPMR“). The GPMR are an integral part of the Merchant Agreement and must be implemented by the MERCHANT.
2.2 All deviations in the integration and the implementation according to the GPMR must be agreed with RATEPAY in advance and be approved in text form (email) by RATEPAY. If changes occur without the approval by RATEPAY and RATEPAY thereby incurs expenses (e.g., in the form of development services), RATEPAY is entitled to charge these expenses to the MERCHANT.
2.3 RATEPAY provides the MERCHANT with the technical integration of the PAYMENT METHODS in the ONLINESHOP, the connection to an IT platform and the necessary information including the device ident concept, whereby the MERCHANT is responsible for the technical integration and the necessary telecommunications connection and to implement these in accordance with the specifications of RATEPAY. RATEPAY remains the owner and copyright holder of the IT platform and the hardware and software provided. The technical integration of the PAYMENT METHODS into the ONLINESHOP takes place exclusively through a direct connection via XML interface, a payment service provider („PSP“) or suitable shop software.
2.4 If the connection is carried out through a PSP, the latter shall be obliged to act exclusively as a subcontractor for the MERCHANT. The MERCHANT assumes the obligation to monitor the PSP order process and to design it according to the specifications of the Merchant Agreement.
2.5 RATEPAY provides access to a test system for the named connection types. The data transmission takes place by default via an SSL encryption.
2.6 The specific data required to provide the services of RATEPAY must be provided by the MERCHANT in the file format determined by RATEPAY. RATEPAY reserves the right not to accept data for processing in deviate data formats.
2.7 In order to enable CUSTOMERS to use the PAYMENT METHODS, compliance with the legal requirements of the GPMR is required. In particular, the additional Terms and Conditions and the Privacy Notice of RATEPAY („ZGB/DSE“) for the use of PAYMENT METHODS by the CUSTOMER are to be implemented by the MERCHANT in accordance with the GPMR.
2.8 The legal requirements according to the GPMR contain, in particular, legal requirements on how the terms and conditions and the privacy notices of the MERCHANT are to be adjusted by the MERCHANT. When making the adjustment, the MERCHANT must ensure that these do not contradict the ZGB/DSE and that the ZGB/DSE prevail. RATEPAY assumes no responsibility for the terms and conditions and privacy notices of the MERCHANT and is not liable, in particular, for any expenses resulting from a conflict of these with the ZGB/DSE.
2.9 The MERCHANT is responsible for ensuring that the CUSTOMER effectively and demonstrably agrees to any agreements that require consent. The consent must be recorded according to the legal requirements. Upon request, the MERCHANT shall be obliged to provide RATEPAY evidence of effective consent.
2.10 The MERCHANT shall be obliged to send RATEPAY its terms of delivery and payment in its respectively valid version and inform RATEPAY of content changes in writing and in advance. Insofar as these changes affect the business relationship between RATEPAY and the MERCHANT, they require the express written consent of RATEPAY.
2.11 All materials provided by RATEPAY to the MERCHANT, such as logos, information texts, calculations, etc., may only be used for the purpose of promoting sales. The right to use these materials ends with the contractual relationship. Changes or additions are only permitted with the written consent of RATEPAY.
2.12 The MERCHANT must bear all costs incurred by it in connection with the integration and use of the PAYMENT METHODS, unless otherwise stipulated in the Merchant Agreement.
3. REQUIREMENTS FOR THE PROVISION OF SERVICES
3.1 GENERAL REQUIREMENTS
3.1.1 The MERCHANT shall be obliged to provide the conditions for the provision of services by RATEPAY. In particular the MERCHANT undertakes to integrate the PAYMENT METHODS into the ONLINESHOP and to keep them integrated during the term of the contract, whereby the PAYMENT METHODS are to be presented in an equal stylistic manner compared to other payment methods.
3.1.2 The MERCHANT shall be obliged to operate the ONLINESHOP in accordance with the respective relevant legal provisions (e.g. in Germany TMG, UWG, PAngV) and the applicable legal provisions for the MERCHANT in individual cases and shall not offer goods or services that are contrary to applicable law, official orders or that violate common decency. Furthermore, the MERCHANT shall not offer goods that violate third-party rights, in particular copyrights or trademark rights. The MERCHANT shall be obliged to immediately inform RATEPAY in writing about any significant changes in the goods and services offered in the ONLINESHOP.
3.1.3 The PAYMENT METHODS shall not be offered for the purchase of vouchers.
3.1.4 The MERCHANT shall be obliged to only offer the PAYMENT METHODS to adult CUSTOMERS who are domiciled in one of the countries according to the Merchant Agreement. In addition, the CUSTOMER’s delivery address must be the same as the CUSTOMER’s billing address, and the respective provisions on consumer rights shall be applicable under governing law. The contract between the MERCHANT and the CUSTOMER must be governed by German law, unless otherwise required by law. In addition, the place of jurisdiction for disputes arising from the contract between the MERCHANT and the CUSTOMER is exclusively the competent court at the location of the CUSTOMER, unless otherwise stipulated by law. The CUSTOMER data verified by RATEPAY during the risk assessment shall not be subsequently changed by the MERCHANT or the CUSTOMER without the express consent of RATEPAY.
3.1.5 The prerequisite for the provision of services by RATEPAY is the legally enforced acquisition of a purchase price claim by RATEPAY, where such claim is initially attributable to the MERCHANT against the CUSTOMER from a legally binding contract for delivery of goods or services between the MERCHANT and the CUSTOMER (“CLAIM(S)”). The MERCHANT warrants that the contract with the CUSTOMER shall not be concluded until the goods have been shipped in full or the services have been rendered in full by the MERCHANT and not at an earlier time, for example by sending an order confirmation. The purchase price claim shall be sold and assigned to RATEPAY immediately after the conclusion of the contract between the MERCHANT and the CUSTOMER. RATEPAY bears the risk of CUSTOMERS’ insolvency for purchased CLAIMS and thus the recoverability of the CLAIMS („DELCREDERE“). When using the PAYMENT METHODS payment by invoice, payment by SEPA direct debit or prepayment, the MERCHANT offers RATEPAY the purchase of all new purchase price claims arising during the duration of the Merchant Agreement. The decision on the acceptance of the purchase offer by RATEPAY is made before, during or after completion of the order process with the MERCHANT by the risk parameters determined by RATEPAY. RATEPAY shall provide the MERCHANT with the results of the risk assessment. Measures to minimise the risk of fraud and payment default may be adjusted by RATEPAY at any time and without the consent of the MERCHANT.
3.2 SYSTEM AVAILABILITY AND TROUBLESHOOTING – SLA
3.2.1 RATEPAY provides the MERCHANT with its systems (gateway, API interface and transaction acceptance) during the system runtime. The basic system runtime is 24 hours per calendar day p.a. The system availability results from the system runtime minus usual maintenance times (clause 3.2.2), minus such downtime for which RATEPAY is not responsible according to clause 3.2.5.
3.2.2 Maintenance may occasionally lead to temporary unavailability of the systems. RATEPAY shall, taking into account what is possible and practical, carry out such maintenance work in times of limited use and to inform the MERCHANT about the scheduled maintenance windows.
3.2.3 RATEPAY ensures system availability – measured at the router output of the RATEPAY data centre – in the amount of 99 % of the calendar year average.
3.2.4 RATEPAY shall be obliged to respond to incoming incident reports within normal business hours (Monday to Friday, 8 am to 7 pm CET, except on public holidays valid for the state of Berlin, Germany) („WORKING DAY(S)“). In the event of a malfunction of the RATEPAY systems, RATEPAY shall be obliged to send a feedback message to the MERCHANT about the measures taken and the expected duration of the disruption clearance (email).
3.2.5 In particular, RATEPAY shall not be responsible and shall not be liable for any disruption, interruption of service or other deviations from the agreed quality of service resulting from (i) IT services, unless they are contractually owed by RATEPAY, in particular with respect to software or IT systems, (ii) changes made by the MERCHANT or third parties to interfaces of the RATEPAY systems, (iii) other errors caused by the MERCHANT or third parties resulting from the integration, (iv) operating errors that occur, (v) events of force majeure, in particular war or threat of war, rebellion or public upheaval, fire caused by a disaster, a ban on imports or exports imposed by the government, natural disasters such as floods and other circumstances that could arise and are beyond the reasonable control of RATEPAY. RATEPAY shall be obliged to, as far as reasonably practicable and possible, cooperate with the MERCHANT to remedy the incident and avoid it in future. RATEPAY may invoice the MERCHANT separately for services for the clearance of disruptions according to this clause, provided they have been commissioned by the MERCHANT.
3.2.6 If RATEPAY is affected by a force majeure event, RATEPAY must notify the MERCHANT immediately (within a maximum of three WORKING DAYS) stating the date on which the force majeure event occurs or has occurred, as well as an appropriate assessment of its cessation and the nature of the force majeure. In the event that a case of force majeure continues for a period of three consecutive months, the MERCHANT has the right to terminate the contractual relationship with immediate effect. Further claims, in particular claims for damages against RATEPAY, are excluded.
3.2.7 If impairment of the system availability is caused by maintenance work of third parties (in particular vicarious agents of RATEPAY), these shall not be regarded as downtimes at the expense of the system availability ensured by RATEPAY.
3.2.8 If the ensured system availability falls short for the first time in the past calendar year (RATEPAY shall monitor the availability of the gateway at the API interface), RATEPAY shall be obliged to reimburse the MERCHANT for the transaction fees incurred in the month in which the interruption starts, up to a maximum value of EUR 5,000. This payment takes place in accordance with clause 3.7.2 and clause 3.7.3. The liability of RATEPAY, in accordance with section 8, remains unaffected thereby.
3.2.9 RATEPAY shall be obliged to announce possible system availability disruption due to maintenance 48 hours in advance, unless an existing urgency requires immediate maintenance. Maintenance work can be carried out on any calendar day, whereby a period of reduced transaction activity is normally selected. The estimated duration of possible impairment in system availability is communicated in a maintenance message. RATEPAY also conducts regular maintenance for about 15 minutes on the first Tuesday of each month between 5 am and 6 am.
3.3 TRANSMISSION OF CUSTOMER DATA AND STATUS MESSAGES
3.3.1 RATEPAY checks the creditworthiness of the CUSTOMER in order for RATEPAY to base RATEPAY’s decision about acquiring the purchase price claims offered by the MERCHANT pursuant to clause 3.1.5. RATEPAY processes the data required for the risk assessments before, during or after the completion of the ordering process. The MERCHANT shall be obliged to immediately inform RATEPAY of any order intake that has used one of the PAYMENT METHODS („PAYMENT CONFIRMATION“).
3.3.2 In addition, the MERCHANT shall be obliged to inform RATEPAY of all delivered goods and services („CONFIRMATION DELIVER“) and any reversals, cancellations, returns of goods or reductions, etc., concerning a CLAIM which has not yet fully been settled (“PAYMENT CHANGES”). All of the above information must be transmitted by the MERCHANT in the digital format agreed upon with RATEPAY via the interface to the IT platform of RATEPAY. Should the MERCHANT fail to comply with the obligation to transmit the information, RATEPAY may charge the MERCHANT a processing fee at the rate of EUR 15 per transaction. Any claims for damages remain unaffected. RATEPAY is entitled to set missing status reports after three months, unless the MERCHANT asserts objections in advance to the implementation of such by RATEPAY. The processing fee according this clause arises when RATEPAY sets the status message automatically. If the MERCHANT does not fulfil the obligation of the same-day transmission of PAYMENT CHANGES and RATEPAY incurs costs such as collection and delivery costs, RATEPAY is entitled to claim these from the MERCHANT.
3.4 ASSIGNMENT AND ACQUISITION OF CLAIMS
3.4.1 In the case of a positive result of the risk assessment, RATEPAY shall be obliged to acquire the purchase price claim offered by the MERCHANT in accordance with clause 3.1.5. By acquiring the purchase price claim, the MERCHANT assigns RATEPAY the right to assert the CLAIM against the CUSTOMER.
3.4.2 RATEPAY and the MERCHANT agree that the assignment of the purchase price claim to RATEPAY shall transfer all claims and rights to RATEPAY that the MERCHANT holds, by law or by contract, in respect to the goods or services, in particular (reserved) property, co-ownership and expectancy rights. The MERCHANT hereby assigns the following rights/claims to RATEPAY: (i) restitution claims against the CUSTOMER or third parties who are the direct owners of the goods, (ii) other claims against third parties (such as trade credit, transport, burglary, theft, fire insurance, claims against central settlers and purchasing associations, claims against carriers), as well as all further ancillary rights. Not covered by the assignment are MERCHANT claims against the CUSTOMER arising from the reversal of the contract between the MERCHANT and the CUSTOMER (such as return shipping costs).
3.4.3 The MERCHANT irrevocably authorises RATEPAY to exercise non-assignable rights, such as contractual rights, in its own name.
3.4.4 The MERCHANT shall be obliged to make all customary and permissible security agreements with the CUSTOMER with respect to the assigned CLAIMS.
3.4.5 RATEPAY accepts all the above assignments. If the assignments are subject to special additional conditions, the MERCHANT undertakes to carry them out in the corresponding manner.
3.4.6 The MERCHANT warrants to RATEPAY that the acquired CLAIMS, including all ancillary rights, exist, are assignable, may be assigned by the MERCHANT and are not subject to objections or other counter-rights of third parties. The right of third parties does not apply to the granting of (extended) retention of title in favour of a supplier of the MERCHANT. The MERCHANT further warrants that the performance underlying the CLAIM is free from defects (recoverability of the CLAIM). The MERCHANT immediately informs RATEPAY in writing if third parties assert rights to a CLAIM. The MERCHANT shall be obliged to prove the legal validity of a CLAIM disputed by a CUSTOMER.
3.5 REASSIGNEMENT OF THE CLAIM
3.5.1 RATEPAY is entitled to transfer a CLAIM that has not yet been fully paid by the CUSTOMER back to the MERCHANT for any of the following reasons: (i) the conditions for the purchase of the CLAIM according to the Merchant Agreement have not been complied with, (ii) the CUSTOMER exercises their right of withdrawal, (iii) the CUSTOMER reverses the contract with the MERCHANT on the basis of a voluntary withdrawal of the purchased item (such as a „100-day right of return“) offered by the MERCHANT, (iv) the CUSTOMER complains to the MERCHANT about a defect in the sold object or other reasons which entitle one to counter-rights (such as claims for defects, objections, appeals, etc.,) against the MERCHANT, or if the CUSTOMER disputes the CLAIM, (v) the MERCHANT has delivered the goods, even though RATEPAY has informed the MERCHANT that there is a suspicion of fraud, (vi) the period between the sending of the CONFIRMATION DELIVER and the actual shipment of the goods extends 100 % in ratio to the average time for shipment required by the MERCHANT, (vii) the MERCHANT does not send the CONFIRMATION DELIVER to RATEPAY within two WORKING DAYS after actual shipment of the goods.
3.5.2 Upon conclusion of the Merchant Agreement, the MERCHANT agrees to a reassignment in the cases specified in clause 3.5.1 and accepts the reassignment. RATEPAY debits the account of the MERCHANT and calculates the claim incurred against the MERCHANT with the next disbursement claim due from the MERCHANT. If, within 30 calendar days, the set-off against a claim for payment is not or only partially possible, the MERCHANT shall be obliged to compensate the debit balance after the invoice has been issued by RATEPAY within seven calendar days.
3.6 RELATIONSHIP BETWEEN MERCHANT AND CUSTOMER
3.6.1 The MERCHANT is not permitted to charge any additional fee in the form of a surcharge for the use of the PAYMENT METHODS vis-à-vis the CUSTOMER.
3.6.2 Express delivery by the MERCHANT to the CUSTOMER is not permitted if the CUSTOMER has selected one of the PAYMENT METHODS for payment of the purchase price.
3.6.3 Unless otherwise agreed between RATEPAY and the MERCHANT, reversal of any services rendered by the MERCHANT to the CUSTOMER (in whole or in part) shall be made exclusively and directly between the MERCHANT and the CUSTOMER even in the case of settled CUSTOMER CLAIMS.
3.6.4 The MERCHANT is responsible for invoicing the CUSTOMER. The MERCHANT must specify (i) the bank details provided by RATEPAY, (ii) RATEPAY as the payee, and (iii) inform the CUSTOMER that the CLAIM has been assigned to RATEPAY.
3.6.5 The MERCHANT shall be obliged to immediately return all payments mistakenly made to the MERCHANT which are actually due to RATEPAY, and must notify RATEPAY without undue delay. All payments to RATEPAY must be made individually and in accordance with the reason for payment (“Verwendungszweck”) provided by RATEPAY („PAYMENT PROVISIONS“). For every payment, according to this clause, which does not correspond to the PAYMENT PROVISIONS and which RATEPAY must assign manually for this reason, RATEPAY may charge a processing fee up to the amount of EUR 15. The same applies to any payment by the CUSTOMER that was erroneously made to the MERCHANT due to incorrect or missing information according to clause 3.6.4 and for this reason must be forwarded to RATEPAY. Any claims for damages remain unaffected. If the MERCHANT does not comply with the PAYMENT PROVISIONS and RATEPAY incurs costs such as collection and delivery costs, RATEPAY is entitled to claim these from the MERCHANT.
3.6.6 The processing of objections, complaints and all other concerns of the CUSTOMER regarding the performance of part of the contract between the MERCHANT and the CUSTOMER, is incumbent on the MERCHANT.
3.6.7 If RATEPAY notifies the MERCHANT that there is suspicion of fraud or any other criminal offence (in particular money laundering) after completing an order, the MERCHANT shall be obliged to immediately cancel the order within the scope of its legal possibilities. If a cancellation is no longer possible, the MERCHANT shall be obliged to assist RATEPAY in the enforcement of all civil and criminal claims, in particular by providing all necessary data, such as IP address, buyer login, invoice, shipping receipt, delivery note.
3.6.8 The MERCHANT is not entitled to offer the CUSTOMER similar or identical payment methods to those of the PAYMENT METHODS.
3.6.9 The MERCHANT shall be obliged to provide RATEPAY with the delivery receipt of the MERCHANT’s transport service provider free of charge and without undue delay, upon request by RATEPAY.
3.7 SAFEGUARDING REQUIREMENTS AND REMUNERATION
3.7.1 RATEPAY complies with the legal safeguarding requirements of the Payment Services Supervision Act (“Zahlungsdiensteaufsichtsgesetz”) (“ZAG”) for the receipt of funds in connection with the provision of payment services. RATEPAY safeguards received funds by the following methods: (i) keeping open trust accounts in accordance with § 17 (1) sentence 2 no. 1 lit. b) ZAG; or (ii) the conclusion of a bank guarantee pursuant to section 17 (1) sentence 2 no. 2 ZAG.
126.96.36.199 In the case of keeping open trust accounts pursuant to § 17 (1) sentence 2 no. 1 lit. b) ZAG, the following applies: RATEPAY, acting as trustee, shall be obliged to receive all incoming payments from CUSTOMERS for CLAIMS assigned by the MERCHANT to RATEPAY separately from RATEPAY’s assets and shall only process the payment at the end of the booking day exclusively to an open trust account with one or more German credit institutions. The account shall be registered in the name of RATEPAY as an account holder in the form of an open trust account. The open trust account is maintained in the economic interest of the MERCHANT and not on RATEPAY’s behalf. RATEPAY shall be obliged to inform the MERCHANT upon request of which credit institution and on what account the funds received pursuant to this clause are deposited.
188.8.131.52 In the case of safeguarding by conclusion of a bank guarantee pursuant to § 17 (1) sentence 2 no. 2 ZAG, the following applies: RATEPAY shall be obliged to inform the MERCHANT upon request with which credit institutions a bank guarantee is concluded. RATEPAY shall be obliged to provide the MERCHANT with proof of the conclusion of the bank guarantee upon request.
3.7.2 The remuneration of RATEPAY is based on the terms agreed in the Merchant Agreement. Pursuant to the Merchant Agreement, RATEPAY shall be entitled to charge to the MERCHANT (i) a transaction fee payable on the day of billing for the MERCHANT, (ii) a disagio arising on acquisition of the CLAIM payable on the day of billing for the MERCHANT, (iii) a payment change fee for any contract-related change in performance, in particular full and partial cancellation, full and partial returns or credits, which arises on the occurrence of the change in performance and is payable on the day of billing for the MERCHANT. The remuneration payable is deducted from the MERCHANT on the day of billing through legal compensation.
3.7.3 The remuneration is always deducted from the purchase price of the CLAIM. This applies regardless of the PAYMENT METHOD used by the CUSTOMER and regardless of the respective ONLINESHOP of the MERCHANT.
3.7.4 The MERCHANT is aware that the initially agreed remuneration is based on the information specified by the MERCHANT (in the document „Price indications“) at the conclusion of the Merchant Agreement (such as shopping basket, annual turnover, return quota). Within the first six months, after the conclusion of the Merchant Agreement, RATEPAY is entitled to unilaterally adjust the terms agreed upon the Merchant Agreement, provided that the information provided by the MERCHANT deviate in part or in whole from the actual key figures by at least 10 %.
3.7.5 RATEPAY, taking into account the interests of the MERCHANT, has the right to unilaterally adjust the conditions in each of the following cases: (i) change in the economic fundamentals, in particular the „EURIBOR 12 months“, (ii) material change in the administrative expenditure of RATEPAY, (iii) material change in the goods or services offered in the MERCHANT’s ONLINESHOP, (iv) material change in the creditworthiness of the MERCHANT. RATEPAY shall be obliged to notify the MERCHANT in writing or in text form (email) of any change in accordance with this clause and clause 3.7.4. The change is effective with the written consent of the MERCHANT. The change is also effective, provided that the MERCHANT does not object to this in writing or in text form (email) within a period of two months after becoming aware. The objection shall duly be raised if it is sent in a timely manner by the MERCHANT. All amendments adjusted by RATEPAY according to this clause and clause 3.7.4 shall apply to the entire existing and future business relationship after the amendments become effective.
3.7.6 RATEPAY provides the MERCHANT with a monthly overview of the services rendered and the remuneration retained by RATEPAY („BILLING“). The BILLING is binding, provided that the MERCHANT does not contradict this in writing or in text form (email) within one month.
3.7.7 Any corrections due to PAYMENT CHANGES shall be considered in the subsequent BILLING.
3.7.8 If an acquired CLAIM becomes non-collectable (in Germany § 17 German Value Added Tax Act) (“Umsatzsteuergesetz”), RATEPAY is entitled to reclaim the VAT paid to the MERCHANT. RATEPAY shall be obliged to document the uncollectability of the CLAIM by providing evidence so that the MERCHANT can assert its own claim for a VAT refund at the tax office. Insofar as the CUSTOMER settles the CLAIM after the VAT adjustment, RATEPAY shall be obliged to inform the MERCHANT and pay back the VAT received by the CUSTOMER to the MERCHANT.
4. SPECIAL PROVISIONS FOR PAYMENT BY INVOICE AND SEPA DIRECT DEBIT
4.1 When using the PAYMENT METHOD payment by invoice, the MERCHANT guarantees that the invoice amount is due for payment by the CUSTOMER after 14 calendar days. When using the PAYMENT METHOD SEPA Direct Debit, MERCHANT guarantees that the invoice amount is due for payment by CUSTOMER after three calendar days. Deviations or changes require a separate agreement between MERCHANT and RATEPAY.
4.2 Payment to the MERCHANT shall be made at the earliest 21 calendar days after receipt of the CONFIRMATION DELIVER in the case of the PAYMENT METHOD invoice purchase and at the earliest seven calendar days after receipt of the CONFIRMATION DELIVER in the case of the PAYMENT METHOD SEPA Direct Debit (Clause 3.3.2) at RATEPAY and only if and insofar as no PAYMENT CHANGES (Clause 3.3.2) exist within this period, e.g. in the form of a revocation right exercised in due time or one of the reasons for a reassignment pursuant to Clause 3.5.1. As a rule, payment shall be made twice a week and, furthermore, only on bank working days in the federal state of Berlin.
5. SPECIAL PROVISIONS FOR PREPAYMENT
5.1 When using the PAYMENT METHOD prepayment, the MERCHANT shall be obliged to provide the CUSTOMER with the legal requirements corresponding to the order confirmation including the payment information in accordance with clause 3.6.4 in text form (email). The MERCHANT shall be obliged to amend the order confirmation and its terms and conditions providing that (i) the contract between MERCHANT and CUSTOMER is concluded with the use of the PAYMENT METHOD prepayment and the receipt of the order confirmation has been received, (ii) the MERCHANT has a right of withdrawal after seven calendar days if, after conclusion of contract, the CUSTOMER has not paid the purchase price until then. The order confirmation must be sent to the CUSTOMER on the same day. In the event that the CUSTOMER does not settle the CLAIM of RATEPAY within seven calendar days, the MERCHANT shall be obliged to notify the CUSTOMER about the termination of the contract between the MERCHANT and the CUSTOMER. Regardless of the reason for termination by the MERCHANT, RATEPAY may, in the absence of the CUSTOMER’s payment, exercise its right under clause 3.5.1 and reassign the CLAIM within seven calendar days.
5.2 Immediately after the CUSTOMER has made payment to RATEPAY, RATEPAY shall be obliged to provide the MERCHANT with the notification of payment receipt (“PAYMENT CONFIRM”). The MERCHANT warrants that the goods shall be shipped to the CUSTOMER without undue delay on the calendar day of receipt of the PAYMENT CONFIRM and shall be obliged to provide RATEPAY with the CONFIRMATION DELIVER (clause 3.3.2).
5.3 For the PAYMENT METHOD prepayment, clause 4.2 shall apply, provided that the payment is made one WORKING DAY after maturity, at the earliest, and the order confirmation is sent.
6. SPECIAL PROVISIONS FOR PAYMENT IN INSTALMENTS
6.1 When using the PAYMENT METHOD payment in instalments, the purchase price claim is assigned by the MERCHANT to a partner bank of RATEPAY. The PAYMENT METHOD payment in instalments can therefore be offered to the MERCHANT only if the MERCHANT concludes a factoring contract with the partner bank. The provisions of the factoring contract shall primarily exist between the MERCHANT and the partner bank and for the purchase price claims assigned in this constellation.
6.2 Should the factoring contract be terminated or cancelled for any other reason, RATEPAY shall be entitled to terminate its services regarding the PAYMENT METHOD payment in instalments with immediate effect and to terminate the Merchant Agreement for a compelling reason without a notice period.
6.3 RATEPAY provides the MERCHANT with a computer program to calculate the instalments („-INSTALMENT CALCULATOR“). If the PAYMENT METHOD payment in instalments can be offered to the CUSTOMER, the INSTALMENT CALCULATOR allows the CUSTOMER to choose the type of instalment the CUSTOMER prefers, taking into account various parameters. The INSTALMENT CALCULATOR is to be incorporated by the MERCHANT and is part of the integration process for its ONLINESHOP. RATEPAY is entitled to replace the INSTALMENT CALCULATOR if necessary by a new version in parts or in whole. The MERCHANT undertakes to incorporate each new version into its ONLINESHOP in accordance with the specifications of RATEPAY. Regarding the INSTALMENT CALCULATOR, RATEPAY grants the MERCHANT a simple, non-exclusive right of use limited in time and territory to the duration of the contract. Any further use is not permitted to the MERCHANT either in parts or in whole.
6.4 The amount of interest is determined by the partner bank. RATEPAY shall be obliged to inform the MERCHANT about new interest rates of the partner bank. The MERCHANT shall be obliged to accept these requirements within ten WORKING DAYS of notification at the latest and to integrate the new interest rates for the PAYMENT METHOD payment in instalment into its ONLINESHOP.
7. SPECIAL PROVISIONS FOR SENDING EMAILS
7.1 The MERCHANT may instruct RATEPAY to send emails to process the PAYMENT METHODS, such as sending invoices or order confirmations to the CUSTOMER. RATEPAY provides the corresponding IT infrastructure in the form of the email server. The MERCHANT is responsible for the content of the emails and the correct transfer of the necessary information to RATEPAY.
7.2 For the creation of emails, sending them to the CUSTOMER, and a possible transmission (Bcc copy) to the MERCHANT, RATEPAY charges the contractually agreed fees. The fees arise with the creation of the email, are due at the time of payment to the MERCHANT and are deducted accordingly. clause 3.7.2 and clause 3.7.3 apply mutatis mutandis.
7.3 The MERCHANT has the option of receiving the emails sent to the CUSTOMERS by RATEPAY in Bcc copy. Should the MERCHANT make use of this option, the MERCHANT is responsible for the receipt of the emails and must provide a valid, functioning and according to the current state of encryption technology, suitable email address.
7.4 In addition, the MERCHANT itself is responsible for compliance with the technical and organisational measures required by applicable European and national data protection regulations. In particular, these measures include the encryption of the connection between the email servers for which the MERCHANT must guarantee TLS support on its email server. The MERCHANT agrees that RATEPAY regularly checks the email server of the MERCHANT as well as encryption support on a case-by-case basis. If the MERCHANT fails to comply with the requirements for a legally compliant transmission path, RATEPAY is entitled to a special right of termination regarding the sending of emails. The special right of termination is exercised with a lead time of five calendar days. Within these five calendar days, the MERCHANT has a right to rectify.
8.1 The MERCHANT is fully liable in the event of non-performance of the contractual obligations assumed by it, and, thereby, the conduct of its vicarious agents is likewise to be assigned to the MERCHANT. The MERCHANT indemnifies RATEPAY from all civil, public and other claims and the consequences of any claims of third parties, which are asserted due to non-compliance with the obligations incumbent on the MERCHANT.
8.2 RATEPAY is only liable for intent or gross negligence, for the injury of life, body or health or according to the regulations of the German Product Liability Law (“Produkthaftungsgesetz”).
8.3 In the event of a slightly negligent breach of an obligation which is essential to the achievement of the purpose of the Merchant Agreement (cardinal obligation), the liability of RATEPAY shall be limited in terms of amount to the damage which are foreseeable and typical according to the nature of the business in question. RATEPAY’s liability for loss of data shall be limited to the normal costs of recovery which would have been incurred in the event of regular backup copies being created within a reasonable level of risk.
8.4 No further liability of RATEPAY shall exist. Any claims existing for the MERCHANT pursuant to clause 3.2.8 shall be offset against any further claims for damages based on a system failure on the part of RATEPAY.
8.5 The preceding limitation of liability shall also apply to the personal liability of RATEPAY employees, representatives, agents and entities.
9. TERM AND TERMINATION OF THE MERCHANT AGREEMENT
9.1 The contractual relationship begins with mutual signing of the Merchant Agreement. The minimum contract term is 24 months and is automatically extended for a further twelve months, unless terminated in timely manner with a period of notice of three months until the end of the minimum contract term or the respective extended term. The right of termination for a compelling reason without a notice period remains unaffected. For PAYMENT METHODS that are agreed after signing the Merchant Agreement, the remaining term of the Merchant Agreement shall apply analogously unless otherwise agreed.
9.2 To be effective, terminations are required to be in writing.
9.3 Upon termination, RATEPAY and the MERCHANT remain obliged to settle the transactions that have already arisen from the purchase transaction but have not yet been completed in the agreed form.
9.4 If the Merchant Agreement ends because of a termination, RATEPAY may suspend the payment to the MERCHANT for the time being and carry out the final clearing after checking all outstanding claims and after expiry of any revocation periods. No interest shall be charged on outstanding debts of the MERCHANT to RATEPAY.
9.5 RATEPAY shall be entitled to stop acquiring purchase price claims (clause 3.1.5) immediately after notice of termination.
9.6 RATEPAY is obligated and also entitled to temporarily block the use of the PAYMENT METHODS offered to the MERCHANT if RATEPAY is obliged to discontinue the provision of services as a result of a change in the law, or a judicial, or a regulatory or a supervisory decision. The MERCHANT is, in this case, entitled to terminate the Merchant Agreement with immediate effect.
10. RIGHT OF MODIFICATION
RATEPAY is entitled, at its reasonable discretion and in the scope of what is reasonable for the MERCHANT, to unilaterally modify all or part of the Merchant Agreement, in particular the GTC, the GPMR, the ZGB/DSE, in whole or in part. The right of modification applies in particular to changes in the legal position as a result of changes in the law or supreme court case law or changes which are exclusively advantageous for the MERCHANT. The announcement of modifications is made by declaration to the MERCHANT in text form (email). In all other cases, the MERCHANT is entitled to a one-month right of objection upon notification by RATEPAY. The objection must be declared to RATEPAY in writing or in text form (email). If the objection is not received within the aforementioned period of time, the modifications shall be deemed approved. If the MERCHANT objects in due time, RATEPAY shall be entitled to terminate the Merchant Agreement in accordance with the notice periods specified in clause 9.1.
11. DATA PROTECTION
11.1 DATA PROTECTION NOTICE FOR THE MERCHANT
11.1.1 RATEPAY relies on the processing of personal data and contract-related data of the MERCHANT to provide its services. This data processing is based on article 6 (1) sentence 1 lit. (b) of Regulation (EU) 2016/679 (General Data Protection Regulation) (“GDPR”).
11.1.2 Data processing and the transfer of personal data and contract-related data of the MERCHANT to third parties only takes place insofar as this is necessary for the fulfilment of the contractual services or insofar as the consent of the MERCHANT has been given. To public authorities (such as law enforcement authorities ), personal data are only transmitted in case of need, to the extent permitted by law.
11.1.3 The processing of personal data of the MERCHANT is partly carried out by third parties commissioned by RATEPAY (in order to fulfil the obligations to identify the MERCHANT under the German Money Laundering Act [“Geldwäschegesetz”]). RATEPAY shall contractually ensure that the processing of MERCHANT’s personal data are carried out in accordance with the instructions and control of RATEPAY.
11.1.4 The MERCHANT has the following rights in data processing: (i) Right to information, which data of the MERCHANT RATEPAY processes: The MERCHANT has a right to information about which data are being processed by RATEPAY, as well as further information according to article 15 GDPR, which is related to data processing. Upon request, RATEPAY will gladly inform the MERCHANT about the relevant data and information and provide the MERCHANT with a copy of this data; (ii) Right to rectify the data of the MERCHANT (article 16 GDPR): The MERCHANT has the right to rectify its data if its data are incorrect or incomplete, taking into account the purposes of the processing; (iii) Right to erasure (article 17 GDPR): The MERCHANT has the right to obtain from RATEPAY the erasure of its data which are no longer needed, the processing is not lawful or if there are other cases under article 17 GDPR. In these cases, RATEPAY immediately deletes the data of the MERCHANT; (iv) Right to restriction of processing of the data of the MERCHANT (article 18 GDPR): The MERCHANT has the right to restrict its data in the cases mentioned in article 18 GDPR. This includes, among others, the case that RATEPAY processes data in locations or to the extent that data processing is no longer legally justified. In addition, it may be relevant that data are subject to a retention obligation and therefore RATEPAY may not simply delete them. In this case, RATEPAY limits the processing to the largest extent possible. Restriction usually means that the data are stored, but access by employees of RATEPAY is no longer possible; (v) Right to data portability (article 20 GDPR): The right to so-called data portability allows the MERCHANT to obtain data about itself, which the MERCHANT provided to RATEPAY, in a format in accordance with article 20 GDPR and to have it transmitted by RATEPAY. Excluded from the obligation to handover are, however, such data, which RATEPAY gains by the processing itself (so-called processing results); (vi) to raise the right to object to the processing referred to in article 6 (1) sentence 1 lit. (f) GDPR (article 21 GDPR): RATEPAY shall be obliged to no longer process data in accordance with article 6 (1) sentence 1 lit. (f) GDPR, if the MERCHANT objects to this and the objection is justified; (vii) Right of withdrawal: The MERCHANT may, at any time, revoke the consent given to RATEPAY upon conclusion of the Merchant Agreement by directly contacting its contact person at RATEPAY, for example by email or telephone. If the MERCHANT withdraws its consent, data of the MERCHANT shall no longer be processed on the basis of consent. The permissibility of the data processing carried out until the revocation on the basis of consent of the MERCHANT remains unaffected by the revocation, as well as the permissibility of the data processing on the basis of other legal bases; (viii) The MERCHANT is also entitled to file a complaint with the competent supervisory authority (Data Protection and Freedom of Information Commissioner of the State of Berlin, Germany).
11.1.5 Further data protection notices for the MERCHANT, such as for the use of the RATEPAY website, the RATEPAY buyer portal and the RATEPAY Merchant portal are contained in the respectively published data protection regulations.
11.2 DATA PROTECTION OBLIGATIONS OF THE MERCHANT
11.2.1 In order to provide its services duly, it is important that the MERCHANT and RATEPAY process certain data from CUSTOMERS only in accordance with the statutory provisions and in accordance with the instructions in the ZGB/DSE. The MERCHANT expressly agrees that RATEPAY may process the data of the CUSTOMER in accordance for the period of use envisaged in the ZGB/DSE and, in the justified case and for the purposes stated in the ZGB/DSE, disclose this to credit agencies and other third parties. RATEPAY and the MERCHANT are obliged to inform each other immediately in the event of actual or potential data breaches that may affect the other party or its third party.
11.2.2 The MERCHANT ensures RATEPAY that the MERCHANT will respect the rights of CUSTOMERS regarding the processing of CUSTOMERS’ data. The MERCHANT undertakes to cooperate with RATEPAY in particular in asserting one of the rights specified in the ZGB/DSE in the processing of data by the CUSTOMER and to inform RATEPAY immediately.
11.2.3 Notwithstanding the assertion of any of the rights in the processing of data by the CUSTOMER as referred to in the ZGB/DSE, the MERCHANT shall be obliged to not process the data of the CUSTOMER beyond the period specified in the ZGB/DSE, as far as it is not subject to further processing on the basis of statutory, legal or contractual agreements or retention requirements.
11.2.4 The MERCHANT must have the respective version of the ZGB/DSE acknowledged by the CUSTOMER, as well as the respective previous versions during adjustments of the ZGB/DSE, and it must be kept available for the CUSTOMER for the period stipulated in the ZGB/DSE and for a period of five years beyond the termination of this contractual relationship.
11.2.5 The MERCHANT only processes data of the risk assessments provided by RATEPAY and third parties commissioned by RATEPAY in accordance with the ZGB/DSE for the purpose of offering the PAYMENT METHODS to the CUSTOMER. The MERCHANT may process the data collected by the CUSTOMER for this purpose and the data of the risk assessment transmitted by RATEPAY to the MERCHANT in this context exclusively for this purpose, unless the CUSTOMER’s consent or legal permission has been declared effective to the MERCHANT for further processing.
11.2.6 If RATEPAY, as part of the risk assessment of the CUSTOMERs, comes to a negative decision on making available a PAYMENT METHOD to the CUSTOMER, RATEPAY shall, on request, communicate the main reasons for the refusal to the MERCHANT, if and to the extent that the CUSTOMER asserts a right against the MERCHANT associated with the processing of the data.
11.2.7 In the event that RATEPAY refuses to making available a PAYMENT METHOD desired by the CUSTOMER, the MERCHANT shall be obliged to notify the CUSTOMER in accordance with applicable data protection provisions that its request has been rejected in an automated process for the processing of personal data. The MERCHANT shall be obliged to immediately forward any statements from the CUSTOMER to RATEPAY and RATEPAY shall then review the negative decision, taking into account the information provided by the CUSTOMER.
12. GENERAL PROVISIONS
12.1 RATEPAY and the MERCHANT undertake not to disclose to third parties, during the term of the Merchant Agreement and for five years beyond that, to any third-party confidential information of which they become aware within the framework of or based on the contractually agreed cooperation. Disclosure in compliance with statutory provisions remains unaffected.
12.2 RATEPAY and the MERCHANT are entitled to name each other to third parties as their own customer respectively and to indicate this information in a reference list (online and off-line) for presentation and advertising purposes. For this purpose, RATEPAY and the MERCHANT give each other the right to use each other’s company, logos and brands.
12.3 The MERCHANT can only offset with legally determined or undisputed claims of RATEPAY.
12.4 RATEPAY is entitled and obliged to examine the MERCHANT before and during the contractual relationship in the manner prescribed by law, in particular due to the provisions of the German Money Laundering Act. The MERCHANT consents to participate in the examination and to provide the required documents. The MERCHANT shall be obliged to comply with its obligation to cooperate in accordance with the German Money Laundering Act and inform RATEPAY of any relevant changes without undue delay.
12.5 RATEPAY may assign or transfer the rights, claims and obligations of the Merchant Agreement to third parties. Upon transfer of the contractual relationship (“Vertragsübernahme”), RATEPAY shall be obliged to inform the MERCHANT about the transfer in a timely manner and in writing or in text form (email). If the MERCHANT does not agree with the transfer, the MERCHANT may terminate the contract without notice within a period of six weeks upon receipt of the transfer notice. If termination does not take place within the specified period, the acceptance of the transfer of the contractual relationship shall be deemed approved.
12.6 RATEPAY is entitled to transfer claims in whole or in part to third parties for the purpose of transferring the DELCREDERE or refinancing and to store, process and transfer all data via the MERCHANT to third parties insofar as this is necessary for the performance of the contractual relationship, the transfer of the CLAIM or refinancing. In this respect, the MERCHANT releases RATEPAY from the obligation of non-disclosure.
12.7 Verbal collateral agreements do not exist. Changes or additions to the contractual relationship must be in writing unless otherwise provided. This also applies to a change of this written form clause. If the amendments or additions are made under a SIDELETTER, the written form shall be deemed to have been complied with, provided that the SIDELETTER signed by the MERCHANT has been received by fax or in text form (email) by RATEPAY.
12.8 Should provisions of this contractual relationship be or become ineffective, void, or should provisions of this contractual relationship be or become impracticable, this shall not affect the validity and practicability of the remaining provisions. Instead of the ineffective, void or unenforceable provision, RATEPAY and the MERCHANT shall agree on a provision which, within the limits of what is legally possible, comes closest to what RATEPAY and the MERCHANT wanted according to the meaning and purpose of the omitted provision. The same applies in the case of contractual gaps.
12.9 RATEPAY is entitled to involve third parties in fulfilling its obligations under this Merchant Agreement.
12.10 German law shall apply exclusively, with the exclusion of United Nations Convention on Contracts for the International Sale of Goods and with the exclusion of the reference regulations under German International Private Law.
12.11 The exclusive place of jurisdiction for all disputes arising out of or in connection with the contractual relationship is the company domicile of RATEPAY.
Effective Date: 22/11/2019
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