GENERAL TERMS AND CONDITIONS TRANSACTION HANDLING
These General Terms & Conditions in English are provided to merchants for informational purposes only and cannot be relied upon to justify claims or responsibilities. They are not legally binding. Reference is made to the German Terms and Conditions (Allgemeine Geschäftsbedingungen Transaktionsabwicklung) available at REZOLVE Paygate GmbH. Please note that in the event of any dispute only the Terms & Conditions in German language will be applicable and they shall prevail over these Terms & Conditions.
1. Subject of these General Terms and Conditions
1.1 Through the setup and provision of a connection for electronic systems to an internet platform for transaction handling, REZOLVE provides the MERCHANT with a service that receives transaction-relevant data from the MERCHANT`s business concern and processes it and/or forwards it to BANKs or PAYMENT service providers and/or THIRD-PARTY PROVIDERS chosen by the MERCHANT for further processing. The requirement for forwarding is a corresponding order by the MERCHANT as well as technical availability. This could be also done by third parties like Payment Gateway Providers or Payment Processors.
1.2 REZOLVE acts exclusively as technical service provider between the MERCHANT, the MERCHANT’S CUSTOMERS and the banks and/or PAYMENT service providers regarding the handling of the payment transaction. The payments themselves will be executed directly from the BANKS or PAYMENT service providerS to the MERCHANT, without REZOLVE having any influence on the payment or the information transmitted in the process, and without forwarding or receiving payments itself. The modalities of these payments are governed by individual contracts concluded between the MERCHANT and the BANKs and PAYMENT SERVICE PROVIDERS.
2.1 By concluding the MERCHANT CONTRACT, the MERCHANT agrees with and accepts that these GENERAL TERMS AND CONDITIONS shall govern his contractual relationship with REZOLVE to the exclusion of any and all other Terms and Conditions, including those of the MERCHANT himself. Apart from these General Terms and Conditions, the basis for the contractual agreement for the respective service of REZOLVE is the respective order form.
2.2 The service-specific or product-specific additional conditions, if they have expressly become part of the contract, shall take priority in case of contradictions. Deviating mandatory legal regulations take priority; deviating agreements between REZOLVE and the MERCHANT only precede if agreed in writing in an individual contract.
2.3 Any assurance of particular characteristics (“guaranteed condition”) by REZOLVE, i.e. as an exception to the limitation of liability referred to at no. 9 requires express and written confirmation (i.e. the determination of the subject matter of the contract and the contractually agreed regulations regarding the characteristics alone are not sufficient). The general description of deliveries and services by REZOLVE in catalogues, brochures and the product description on the website is no assurance of characteristics in the sense of the law.
3. Conditions at the contract partner
3.1 For individual services the MERCHANT requires conditions that are to be established by him through contracts with THIRD-PARTY PROVIDERS.
3.2 In particular, the modalities for the handling of monetary transactions are governed by third-party contracts concluded directly between the MERCHANT and the BANKS or PAYMENT service PROVIDERS on the MERCHANT’S own responsibility. The monetary transactions governed by third-party contracts take place directly between the BANKs or PAYMENT service PROVIDERs and the MERCHANT, without REZOLVE having any influence on the contractual relationship, the payment or the information transmitted in the process, such as in the case of acceptance contracts for credit card payments, for example. The contractual relationship with REZOLVE does not establish such an acceptance right, but requires one.
3.3 Therefore, REZOLVE cannot be held liable for the contents of such contractual relationships or for errors or defaults in the execution of transactions within them.
3.4 It is the duty of the MERCHANT on his own responsibility to provide for the technical connection of his system and its requirements to the REZOLVE merchant interface. REZOLVE can recommend service providers for this, but accepts no liability whatsoever for the contents or existence of contracts, even if these become effective through reference or intervention by REZOLVE.
4. REZOLVE services
4.1. General service obligations
4.1.1 The service encompasses the setting up and parameterisation of the merchant configuration (REZOLVE merchant interface) for the products selected on the order form at the price agreed on such form, on REZOLVE’s internet platform for transaction handling.
4.1.2 REZOLVE grants the MERCHANT a time-limited right to use the REZOLVE merchant interface for the duration of the contract for the selected product at the respective price agreed on the order form (see no. 5).
4.1.3 Furthermore, the service encompasses the technical handling of individual transactions in the context of the selected product at the agreed transaction price.
4.1.4 The specific scope of the service results from the products selected on the order forms or web forms as well as further additional conditions that may apply to the respective products.
4.1.5 General technical changes, amended conditions or other requirements at REZOLVE (that represent a good reason for change), at the MERCHANT, at the CUSTOMER or at THIRD PARTIES (credit card companies, credit institutes, BANKs etc.) which affect the interface or the upstream system can necessitate measures for changes, adaptations or reprogramming with the MERCHANT. REZOLVE is not obligated to render these services. If REZOLVE renders such services on the MERCHANT’s system at the latter’s request, the MERCHANT shall bear the costs for this in accordance with the currently valid price list.
4.1.6 If REZOLVE provides technical information or advicefree of charge and this information or advice is not expressly part of the scope of performance agreed with and contractually owed by REZOLVE, this takes place to the exclusion of all liability.
If no separate Service Level Agreement (SLA) was agreed for consultation, REZOLVE is not obligated to adhere to certain service parameters (e.g. reaction or call-back times).
4.1.7 REZOLVE is entitled to employ THIRD PARTIES or subcontractors to render the service.
4.2 Service level
4.2.1 REZOLVE renders its service to the MERCHANT as a preferred contract partner and uses commercially reasonable efforts to maintain a high availability of the technical service. The MERCHANT acknowledges, however, that the accessibility and the functionality of the technical service depend decisively on the functionality of THIRD-PARTY systems, in particular the technical systems of the BANKs and other service providers as well as the availability of the internet. REZOLVE cannot guarantee the full availability of the technical service at all times in the case of a malfunction, a failure or other problems in such third-party systems. Given this condition, the following is agreed:
4.2.2 If REZOLVE falls below a monthly average availability of the interface of 99.5 per cent, REZOLVE shall reimburse the MERCHANT on written demand 50 per cent of the rent in accordance with no. 7 for the current month in the form of a credit note. This does not apply in the case of disruptions for which REZOLVE is not responsible, such as force majeure, criminal intervention by THIRD PARTIES or short, maintenance-related downtimes, which are expressly excluded from the calculation of the availability. There are no further rights to compensation of damages.
4.2.3 If REZOLVE by its own fault does not achieve the aforementioned availability of 99.5 per cent in two consecutive months, or falls below said availability by more than three per cent more than three times per contract year, the MERCHANT can demand in writing that REZOLVE establish the contractually agreed availability of the interface. If REZOLVE does not comply with such a request within a period of three months, or does not comply with it to an adequate degree, or if REZOLVE falls below the availability again within a period of six months following receipt of the written demand, the MERCHANT shall have the right to terminate the contractual relationship without notice. There are no further rights to compensation of damages (beyond no. 4.2.2).
5. Right of use and other intellectual property rights
5.1 Depending on the service package selected and within the limits of the provisions of the MERCHANT CONTRACT, REZOLVE grants the MERCHANT a non-exclusive right to use the merchant interface provided by REZOLVE to the extent that is absolutely necessary for the setting up and management of his merchant connection and his access to the REZOLVE backend system. REZOLVE reserves the right to adapt the merchant interface at any time, to provide a new version to the MERCHANT or to change and also restrict the functions and properties of the merchant interface.
5.2 The right of use mentioned in no. 5.1 is bound to the MERCHANT and may neither be transferred or passed on in any other way by the MERCHANT without the prior written consent of REZOLVE and is also not otherwise transferable.
The right of use does not include ownership rights of any kind, nor does it grant any rights to the source code or any decompiled software. The interface may be used only by the MERCHANT himself, not by THIRD PARTIES.
6. Obligations of the contract partner, security and checking
6.1 The MERCHANT is aware of the elementary importance of adherence to the security regulations. Detailed information about security regulations to be adhered to can be found in the PCI-DSS rules (Payment Card Industry Data Security Standard: http://www.pcisecuritystandards.org), which is also available on the websites of Visa or MasterCard and which is acknowledged and adhered to by the MERCHANT.
The MERCHANT is particularly obligated to ascertain that all systems that communicate with the REZOLVE merchant interface or receive, forward or further process data via it are fundamentally suitable for this purpose and that they are always at the latest technical level (including with update and patch level) and effectively protected against unauthorised access by appropriate technical and organisational measures (e.g. physical access-, system access- and application access control measures, also with firewall and anti-virus protection). The MERCHANT undertakes to make available all necessary information for the technical handling of payments via the REZOLVE merchant interface or to provide this information on request.
6.2 The REZOLVE merchant interface offers the MERCHANT various possibilities to check his configuration and transaction data via an access to the REZOLVE backend system, by which the MERCHANT can check the conformity of his transactions (e.g. payments) handled via the REZOLVE merchant interface with his own system data.
The MERCHANT undertakes to setup suitable processes for checking his transaction data and to use them regularly, at least once per month. He is liable for all damages and losses arising from failure to fulfil his checking obligations. The MERCHANT acknowledges that insufficient checking of the transaction data can also result in THIRD PARTIES (e.g. BANKS and PAYMENT service PROVIDERS) suffering damages or losses.
6.3 In addition, the MERCHANT undertakes to transmit all data necessary for the execution of the contract to REZOLVE in a correct and processable condition and to immediately inform REZOLVE in writing about any changes to his master data as well as all disruptions, defects or other impairments with a sufficiently detailed description, including the consequences.
6.4 The MERCHANT shall handle all complaints of his customers within his own contractual relationship directly with the customers. The MERCHANT indemnifies REZOLVE from claims of his customers.
6.5 The MERCHANT is obligated to make data backups himself within the legally permissible and/or prescribed scope. Unless expressly agreed in the contract, REZOLVE is not obligated to carry out data protection measures, data recovery measures or other support services. In particular, the MERCHANT shall bear the costs in accordance with the order form if REZOLVE has to render support services or other services that are obviously based on the fact that the MERCHANT has no or insufficient knowledge of dealing with the systems and tools necessary for the processing of transactions.
6.6 The MERCHANT guarantees that he is in possession of the full legal and contractual capability and the necessary permits for the sale of his products/services using the services of REZOLVE.
6.7 The MERCHANT guarantees that he shall use the services of REZOLVE exclusively for his commercial purposes and for transactions in his own favour. The MERCHANT is the sole party to the contracts for the connection to the connected THIRD-PARTY SYSTEMS (e.g. service providers, acquirers, BANKs and PAYMENT SERVICE PROVIDERs). He guarantees that he is not acting as a middle man. The MERCHANT undertakes to handle complaints directly with his customers himself.
6.8 Before using REZOLVE’s services, the MERCHANT undertakes to request information with regard to the adequate handling of transactions from the BANKs, PAYMENT service PROVIDERS and/or THIRD-PARTY PROVIDERS that he has selected and with whom he must conclude separate contracts. Furthermore, he undertakes to adhere to the conditions and regulations of these service providers. In addition, the MERCHANT undertakes to transmit to REZOLVE, correctly and in a processable condition, all information from these service providers that is required for the smooth handling of transactions or is otherwise relevant for REZOLVE’s services.
Those third party providers and the MERCHANT are solely responsible for the smooth handling of the cash flow in payment transactions.
7. Payment modalities
7.1 The amounts of usage and service charges are to be taken from the price lists/order forms in their currently valid version. All prices are exclusive of statutory VAT at the time of the service provision. The rent and transaction charges are due for payment at the end of the month. All accrued charges are due for payment in each case at the latest on receipt of the invoice, unless a particular date is specified.
Invoicing takes place according to the MERCHANT’s choice on the order form. However, the MERCHANT shall receive at least a detailed annual statement. The parties agree that invoices can also be delivered electronically, for example in the form of a PDF document. The MERCHANT expressly consents to this form of invoicing.
7.2 In the case of a delay in payment for which the MERCHANT is responsible, the MERCHANT shall bear the entire damage caused by delay. In the case of a return debit for which the MERCHANT is responsible, the MERCHANT shall also bear the charges for the return debit.
In the event that the MERCHANT is in arrears with the payment of more than two monthly invoices, Rezolve also has the right to suspend services if the MERCHANT does not settle the payment arrears within a further month after the threat and meets his obligations punctually.
7.3 REZOLVE has the right to adjust the prices from time to time according to changes in economic, technical or legal conditions that cause considerable additional costs. REZOLVE shall inform the MERCHANT at least six weeks in advance in the case of an intended adjustment. If the MERCHANT does not agree with the adjustment, he shall have the right to an extraordinary written notice of termination of that part of the contract affected within a time limit of six weeks after receiving the information about the increase in charges. The receipt of the notice of termination by REZOLVE is decisive. On expiry of the time limit a termination on account of the increase in charges is no longer possible. If the MERCHANT does not exercise this right to terminate, the increase in charges becomes effective.
7.4 Possible THIRD-PARTY costs (see also no. 3, e.g. routing costs, PIN authorisation, credit agencies, acquiring contracts) are not covered by this contract and shall be invoiced to the contract partner by the respective THIRD PARTY.
8. Term, termination of the contract
8.1 The contractual relationship starts on the first day of the month following the date of signing the order form, unless expressly agreed otherwise on the order form. It runs for a initial term of at least 36 months and is automatically extended on expiry of each fixed term for a further fixed term of at least 12 months if no notice of termination is served. The contract can be terminated in writing subject to a notice period of three months to the end of a fixed contractual term. This does not affect the right to extraordinary termination.
8.2 If the remaining term of the contractual relationship should be less than 12 months when re-ordering further services, the remaining term is extended to 12 months and later on according to no. 8.1 if no notice of cancellation is given within the time limit of 3 months to the expiry of the remaining term. The re-ordering of individual services within a contractual relationship for which notice of termination has been served is therefore not possible.
8.3 The contract can be terminated ordinarily by REZOLVE in its entirety or with regard to partial services by giving notice of three months if a service is related to THIRD PARTIES or suppliers or can no longer be offered by REZOLVE for technical or legal reasons. In individual cases REZOLVE is also entitled to terminate with a shorter notice period if the service provided by third-party service providers is verifiably no longer available.
9.1 Each contracting party is liable according to the legal regulations to the other contracting party for damages
- arising from a grossly negligent or deliberate breach of obligations,
- due to the absence of a guaranteed condition,
- due to a culpable breach of essential contractual obligations,
- due to a culpable injury to health, body or life or
- for which the product liability law stipulates liability
with the following provisions:
9.2 In the case of gross negligence of vicarious agents who are not legal representatives or leading employees of the contracting parties, liability is limited to the typically foreseeable direct damages provided the damage does not concern body, life and health or a promised guarantee or mandatory legal provisions in accordance with the German Product Liability Act. Liability for loss of profits is excluded.
9.3 Essential contractual obligations are those whose fulfilment enables the execution of the contract at all and in whose observance the contracting parties regularly trust and should be able to trust and whose breach on the other hand endangers the attainment of the contract purpose. In the case of a breach of essential contractual obligations, liability is limited, to the typically foreseeable direct damages. Liability for indirect damage and loss of profits is excluded.
9.4 In cases of simple negligence or liability regardless of negligence or fault, the liability is limited, provided the damage does not concern body, life or health or a promised guarantee or mandatory provisions in accordance with the German Product Liability Act, to five thousand euros or, if it should be higher, to the amount of the remuneration paid by the contractual partner to REZOLVE in the previous calendar year, limited to the calendar year. Liability for loss of profits is excluded.
9.5 The limitations of liability shall not apply in the case of intent, gross negligence or injury to health, body or life, in the case of liability under the product liability act or in the case of other, more extensive mandatory statutory liability.
10.1 The MERCHANT is obligated to keep secret all data and information that he has received or become aware of in the context of the contractual relationship, unless such data and information is expressly marked or intended for forwarding. The MERCHANT further undertakes to make information accessible only to those employees or vicarious agents who directly require the information for the execution of the contract and who are bound by a corresponding obligation to secrecy.
10.2 The MERCHANT undertakes in particular to take measures to keep disclosed passwords secret and to monitor this. REZOLVE is to be informed of this on demand.
The confidentiality obligation shall not apply to confidential information (i) that is demonstrably already known to the receiving party at the time of disclosure; (ii) that is generally known, published, of general expertise or of state of the art at the time of disclosure; (iii) that becomes generally known after the time of disclosure or individually known to the recipient by third parties without breach of any confidentiality agreement, statutory provision or governmental order; or (iv) that is independently identified or developed by the receiving party after the time of disclosure independently of the confidential information.
The receiving party is not permitted to pass on confidential information of the disclosing party to third parties. Third parties in this context are any natural persons, legal entities, that are not affiliated with the receiving party under group law pursuant to §§ 15 et seq. of the German Stock Corporation Act (AktG), as well as their employees and bodies authorized to represent them. Passing on to vicarious agents, subcontractors or external consultants of the receiving party is only permissible with the prior consent of the disclosing party.
10.3 The MERCHANT grants REZOLVE to a worldwide, non-transferable, non-exclusive license during the term of the contract to use the merchant`s name, trademarks and company logo, for advertising and marketing purposes and REZOLVE is entitled to promote the commercial relationship on the REZOLVE website or in other media (reference partner).
11. Data protection
11.1 The MERCHANT is the Data Controller in the meaning of the REGULATION (EU) 2016/679 (General Data Protection Regulation – GDPR) and is therefore responsible for ensuring compliance with all statutory data protection provisions which arise from the GDPR and other statutory data protection provisions applicable to him.
11.2 REZOLVE is acting as a data processor after Article 28 GDPR on behalf of the MERCHANT. Therefore, REZOLVE additionally provides the MERCHANT with a separate data processing agreement which covers the contract contents legally required by Article 28 GDPR.
11.3 As a “Controller” after the GDPR, the MERCHANT is, inter alia, obliged to fulfill the statutory transparency obligations towards data subjects and, as far as required in the context of the services ordered (e.g. in the context of credit worthiness checks at credit agencies), to obtain consents from data subjects.
12. Place of jurisdiction, choice of law
12.1 This contract and all legal relationships arising from the contract are governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.2 The place of jurisdiction for disputes between the parties arising out and from this contract is exclusively London.
13. Final provisions
13.1 Amendments or additions to the contractual relationship between REZOLVE and the contract partner must be in writing. This also applies to amendments regarding the requirement of the written form.
13.2 If individual provisions of the contract should be entirely or partly ineffective, this does not affect the effectiveness of the other provisions. The parties shall replace the ineffective clause by an effective clause that achieves as far as possible the purpose and economic intention of the ineffective clause.