General Terms & Conditions

Transaction Handling

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, COMPUTOPprovides the MERCHANT with a service that receives transaction-relevant data from the MERCHANT`s business concern and processes it and/or forwards it to FINANCIAL INSTITUTIONS and/or THIRD-PARTY PROVIDERS chosen by the MERCHANT for further processing. Therequirement for forwarding is a corresponding order by the MERCHANT as well as technical availability.

 

1.2 COMPUTOPacts exclusively as technical service provider between the MERCHANT, the MERCHANT'S CUSTOMERS and the FINANCIAL INSTITUTIONS regarding the handling of the payment transaction. The payments themselves will be executed directly from the FINANCIAL INSTITUTIONS to the MERCHANT, without COMPUTOPhaving 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 FINANCIAL INSTITUTIONS.

2. Applicability

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 COMPUTOPto 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 COMPUTOPis the respective order form.

2.2 The service-specific or product-specific additionalconditions, 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 COMPUTOPand the MERCHANT only precede if agreed in writing inan individual contract.

2.3 Any assurance of particular characteristics(“guaranteed condition”)by COMPUTOP, 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 COMPUTOPin catalogues, brochures and the product description on the website is no assurance of characteristicsin 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 MERCHANTand the FINANCIAL INSTITUTIONS on the MERCHANT’S own responsibility. The monetary transactions governed by third-party contracts take place directly between the FINANCIAL INSTITUTIONS and the MERCHANT, without COMPUTOPhaving 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 COMPUTOPdoes not establish such an acceptance right, but requires one.

3.3 Therefore, COMPUTOPcannot 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 COMPUTOPmerchant interface. COMPUTOPcan recommend service providers for this, but accepts no liability whatsoever for the contents or existence of contracts, even if these become effectivethroughreferenceor intervention by COMPUTOP.

4. COMPUTOP services

4.1. General service obligations

4.1.1 The service encompasses the setting up and parameterisation of the merchant configuration (COMPUTOP merchant interface) for the products selected on the order form at the price agreed on such form, on COMPUTOP’s internet platform for transaction handling.

4.1.2 COMPUTOP grants the MERCHANT a time-limited right to use the COMPUTOP 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 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 COMPUTOP (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. COMPUTOP is not obligated to render these services. If COMPUTOP 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 COMPUTOP 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 COMPUTOP, this takes place to the exclusion of all liability.
If no separate Service Level Agreement (SLA) was agreed for consultation, COMPUTOP is not obligated to adhere to certain service parameters (e.g. reaction or call-back times).

4.1.7 COMPUTOP is entitled to employ THIRD PARTIES or subcontractors to render the service.

4.2 Service Level

4.2.1 COMPUTOP 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. COMPUTOP 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 COMPUTOP falls below a monthly average availability of the interface of 99.5 per cent, COMPUTOP 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 COMPUTOP 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 COMPUTOP 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 COMPUTOP establish the contractually agreed availability of the interface. If COMPUTOP 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 COMPUTOP 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, COMPUTOP grants the MERCHANT a non-exclusive right to use the merchant interface provided by COMPUTOP to the extent that is absolutely necessary for the setting up and management of his merchant connection and his access to the COMPUTOP backend system. COMPUTOP 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 Depending on the service package selected and within the limits of the provisions of the MERCHANT CONTRACT, COMPUTOP grants the MERCHANT a non-exclusive right to use the merchant interface provided by COMPUTOP to the extent that is absolutely necessary for the setting up and management of his merchant connection and his access to the COMPUTOP backend system. COMPUTOP 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.

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: 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 COMPUTOP 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 COMPUTOP merchant interface or to provide this information on request.

6.2 The COMPUTOP merchant interface offers the MERCHANT various possibilities to check his configuration and transaction data via an access to the COMPUTOP backend system, by which the MERCHANT can check the conformity of his transactions (e.g. payments) handled via the COMPUTOP 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 COMPUTOP in a correct and processable condition and to immediately inform COMPUTOP 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 COMPUTOP 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, COMPUTOP 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 COMPUTOP 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 COMPUTOP. 

6.7 The MERCHANT guarantees that he shall use the services of COMPUTOP 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 COMPUTOP’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 COMPUTOP, 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 COMPUTOP’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.

7.3 COMPUTOP 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. COMPUTOP 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 COMPUTOP 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 COMPUTOP 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 COMPUTOP for technical or legal reasons. In individual cases COMPUTOP 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. Liability

9.1 Each contracting party is liable according to the legal regulations for damages to the other contracting party

 

  • 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 COMPUTOP in the previous calendar year, limited to the calendar year. Liability for loss of profits is excluded.

9.5 Besides,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, liability shall be excluded.

9.6 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. Compensation for lost profit is excluded.

10. Confidentiality/Advertising

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. COMPUTOP 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 COMPUTOP 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 COMPUTOP is entitled to promote the commercial relationship on the COMPUTOP 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 COMPUTOP is acting as a data processor after Article 28 GDPR on behalf of the MERCHANT. Therefore, COMPUTOP additionally provides the MERCHANT with a separate data processing agreement which covers the contract contents legally required by Article 28 GDPR.COMPUTOP ist als Auftragsverarbeiter nach Artikel 28 DSGVO für den HÄNDLER tätig. COMPUTOP stellt dem HÄNDLER daher zusätzlich eine separat abzuschließende Vereinbarung zur Auftragsverarbeitung zur Verfügung, die die gesetzlich geforderten Vertragsinhalte nach Artikel 28 regelt.

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 Bamberg.

13. Final provisions

13.1 Amendments or additions to the contractual relationship between COMPUTOP 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.

General Terms and Conditions for the purchase of POS-Terminals

Preamble

The parties plan a cooperation between COMPUTOP and the MERCHANT concerning the technical processing of card-based payment transactions and related data communication via a Point of Sale (hereinafter POS). The terminals will be provided as purchase devices.

 

I. Scope

1. These General Terms and Conditions of Sale (hereinafter T&C) shall apply to the business transactions between COM-PUTOP and MERCHANTS (enterprises (§ 14 BGB), legal enti-ties of the public law or special assets under public law (here-inafter MERCHANT), even if they are not separately men-tioned again in later contracts. Divergent, opposing or addi-tional General Terms and Conditions of the MERCHANT shall be herewith rejected. These T&C shall also apply when we execute the order, unaware of opposing terms and conditions of business or those differing from these present T&C. The MERCHANT’S own terms and conditions of business shall ap-ply only if we have explicitly approved them in writing.

2. The subsequent T&C shall apply to the following business transactions:

The purchase of CCV POS terminals, printers or external PIN pads. The MERCHANT can acquire these POS terminals from COMPUTOP by purchasing them linked to the selection in the order form. The respective purchase order in connection with these T&C shall regulate purchase, delivery and activation of the POS terminal as well as the general instruction to the system and the costs occurred.

This POS terminal shall allow the MERCHANT

  • to participate in the credit card routing of VISA, Master-Card and American Express (in accordance with the con-tracts of the MERCHANT with credit card companies; credit cards: for example, Visa, Master-Card, American Express, Diners Club, JCB, CUP)
  • the realisation of communication between the POS ter-minal and the authorisation systems of the card issuer

3. In the processing of the technical transactions via POS ter-minals, COMPUTOP shall only act as the technical service pro-vider between the MERCHANT, the MERCHANT’S CUS-TOMERS and the BANKs and/or PAYMENT SERVICE PROVID-ERs. Provision of the technical services for the execution of non-cash payments with holders of credit or debit cards shall be subject matter of a contract concerning transaction pro-cessing with COMPUTOP within separate T&C.

4. The payments themselves shall be made directly by the BANKs or PAYMENT SERVICE PROVIDERs to the MERCHANT without COMPUTOP having any influence on the payment transaction (payment process) or the information transmit-ted nor forwarding or accepting payments itself. The modali-ties of these payment services shall be regulated in independ-ent contracts which shall be the MERCHANT’S responsibility and must be concluded directly between the MERCHANT and the BANKs and PAYMENT SERVICE PROVIDERs and shall not be subject matter of these T&C.

5. Within contracts procured by himself whose procurement, content and existence shall be solely the MERCHANT’S re-sponsibility, the MERCHANT shall bear all costs for the oper-ation of the POS terminal, in particular the connection charges to the network operator, commitment fees and on-going fees for connections, terminal installations for data transmission and information exchange. As a result, COM-PUTOP shall not be made liable for the content of such con-tractual relationships or, within their scope, for flaws during the execution.

6. A separate agreement shall be required for the use of ad-ditional cards of different systems.

II. Scope of Performance of COMPUTOP

1. The following services shall be rendered to the MERCHANT by COMPUTOP: In accordance with the proviso and within the extent of the stipulations of the present agreement, with the acquisition of the hardware the MERCHANT shall also acquire an irrevocable, non-exclusive, simple, temporary right which shall be limited to the duration of the contract to use the op-erating system software related to the hardware for the type of use specified in the contract for his own purposes in com-pliance with the software license for the device acquired which is referred to in the order form.

Services relating to the devices acquired such as individual configuration, initialisation, installation, putting the system into operation and instruction of the staff on how to operate the systems, and the like shall not be part of the scope of performance. These and comparable services shall be charged at a price and can be requested separately by the MERCHANT from COMPUTOP and will then have to be com-missioned individually.

COMPUTOP shall be entitled at any time to deliver the hard-ware in a version (modification of the hardware revision) different from the aforementioned provided the MERCHANT is informed four weeks in advance, the modified version of the hardware holds the same licences as the version men-tioned and it does not place the MERCHANT in a worse-off position and can be integrated in the MERCHANT’S system environment without additional expense to him. Permissible variants of such modifications of the hardware version shall only modify component parts, modules and software which do not directly influence the external appearance (form, color, size), external connections (e.g. Kensington Lock) and external physical interfaces (e.g. connection to the Powered USB cable). Such variants of the hardware version shall not be distinguishable externally for the MERCHANT. COMPUTOP shall ensure that such variants of versions do not require any change to the components of the checkout software (partic-ularly but not exclusively driver software) and to the compo-nents of the server software which are indispensable to a fault-free operation. This shall also apply to the installation and configuration of the aforementioned software compo-nents.

As an option, hardware can be delivered to decentralized de-livery addresses. In this case, a separate consultation and a corresponding individual agreement shall be required. Deliv-ery of the hardware shall include charged operating system software.

As a rule, invoicing by the contractor shall be carried out after service provision, i.e. after each delivery.

In exchange for the plug-in power supply unit necessary for power supply in Germany, the hardware can be supplied, if necessary, with the differing plug-in power supply unit or cold-device plug for Austria, Switzerland, France, Belgium, the United Kingdom, Luxembourg, Monaco, the Netherlands, Spain or the United States. The supply of component parts different from those included in the scope of supply and spe-cific of the German market (e.g. plug-in power supply unit, cold-device plug) shall require additional consultation and a separate agreement.

2. Within the agreement concluded with the MERCHANT on the transaction processing and the T&C applicable, COM-PUTOP shall transmit information on authorisation or locking query to the computer designated to the card used (acquirer, bank or credit card company respectively) and transmit the result back. Content correctness of the reply shall not be COMPUTOP’s responsibility. COMPUTOP shall transmit credit card requests to the credit card company named by the MER-CHANT, different cards shall be handled in accordance with individual agreements. Positively authorised sales shall be saved in the POS terminal. Along with execution of close-out at the POS terminal, the card revenue saved shall be submit-ted to the network operators for further processing.

COMPUTOP shall make sure that the transmitted data will be saved for the following purposes:

  • Creation of sales files at the point of close-out by the MERCHANT for the payment transaction
  • Settlement of COMPUTOP fees from the agreement on transaction processing

Complaints processing

If technical requirements, modified requirements of different service providers, e.g. acquirer, bank or credit card compa-nies respectively and/or amendments to public law should lead to a mandatory conversion of the payment system dur-ing the operating period of a terminal, COMPUTOP shall pro-vide solutions to the maintenance of the payment system. Possible costs arising in this connection can be charged to the MERCHANT. Changes to the software and security standards shall be charged in accordance with COMPUTOP‘s valid list of prices and services.

COMPUTOP shall be entitled to make use of third parties for the fulfillment of services.

III. Conclusion of Contract in Writing, Suitability

1. COMPUTOP’s offers shall be non-binding. A contract shall only come into effect upon COMPUTOP’s written confirmation referring to a MERCHANT’S order by order form or, by impli-cation, with the execution of the delivery or service ordered.

2. The legal relationship between COMPUTOP and the MER-CHANT shall solely be governed by the contract in writing (order volume according to the order form) including these T&C. Additions and amendments to this contract as well as these T&C must be in writing to become effective. This shall also apply to the suspension of the written form clause or its modification. Transmission via telecommunication, particu-larly by e-mail, shall not be sufficient.

3. It shall be exclusively the MERCHANT’S responsibility to check the suitability of the contractual products and services for his purposes. Liability for the suitability of the contractual products and services for the MERCHANT’S purposes shall as-sume that COMPUTOP confirmed or guaranteed the suitability in writing.

4. References to certifications (e.g. ZKA), DIN or CE stand-ards shall only include a product description. Assurance of qualities in accordance with § 443 BGB must be explicitly agreed or defined as such. The Assurance of particular qual-ities (“warranted characteristics”) by COMPUTOP, i.e. as an exception to the limitation of liability under no. XII requires express and written confirmation (i.e. only the provisions of the subject matter of the contract and the contractually agreed regulations shall not be sufficient). The general de-scription by COMPUTOP of deliveries and services in cata-logues, brochures and the product description on the website shall not be a guarantee of characteristics in legal terms.

IV. Obligations of the Merchant

1. The MERCHANT shall undertake to provide all data neces-sary for the installation of the terminal concerning the con-nection type without delay and diligently. Should a violation of these obligations cause damage or additional expense to COMPUTOP or third parties, all costs incurred shall be charged to the MERCHANT. The MERCHANT shall ensure that, if requested, COMPUTOP staff or individuals commissioned by COMPUTOP can have access to and check the POS terminal and the data transmission port during the regular business hours. The MERCHANT shall undertake to use and handle the terminal for the intended purpose as well as to avoid misuse and damage and provide proof of a low-current insurance for the duration of this agreement. The MERCHANT shall inform COMPUTOP without delay of malfunctions of the system, the assertion of alleged rights of third parties as well as of all processes which suggest improper use of the system.

2. Sales received via the terminals must be checked without delay and regularly by the MERCHANT and possible objec-tions must be reported to COMPUTOP in writing without delay after their discovery. Objections can only be asserted within one month after receipt of the facts establishing them.

3. The MERCHANT shall also undertake:

  • to allow the installation of the devices on the date agreed
  • to report a change of location of the devices without de-lay and in writing
  • to operate the provided devices in accordance with the instruction accompanying them
  • to indicate failure, defects and damage without delay
  • to report a change of the postal address and/or dial number of the MERCHANT without delay and in writing
  • to report the assertion of alleged rights of third parties without delay
  • to point out the actual situation of ownership, in the case of attachment by third parties relating to COM-PUTOP’s property of the devices under reservation, to such third parties and the body authorised to execute the attachment
  • to provide the required line connectors and junction boxes in accordance with the specifications by COM-PUTOP at the requested location of the terminal and in-form COMPUTOP of the availability for installation by COMPUTOP or third parties commissioned by COM-PUTOP
  • to close out terminal daily as a rule, however at least once a week and at the end of the month
  • to inform COMPUTOP without delay of a change in the bank details for credits and direct debiting
  • to adhere at any time to the extent of the right of use granted concerning the use of the software integrated in the device: with the acquisition of the device the MER-CHANT shall be entitled to use the software integrated in the device within the framework of the contract pur-pose for his own purposes economically. For this pur-pose, COMPUTOP shall grant the MERCHANT a simple, irrevocable, non-exclusive right of use limited to the du-ration of the contract for the type of use intended for his own purposes in accordance with the proviso and to the extent of the regulations of the present agreement. A modification, particularly a further development of the software shall be reserved to the author and such a right shall not be granted.

4. The MERCHANT shall be especially liable to COMPUTOP for damage of property, financial loss or personal injury which the MERCHANT or persons commissioned by the MERCHANT to fulfill his contractual obligations have caused by gross neg-ligence or intentionally, for damages due to improper or neg-ligent/inappropriate handling, particularly by interfacing or connections of third-party products without the express con-sent of COMPUTOP or by the impact of third devices such as electronic article surveillance systems as well as conse-quences thereof, also concerning complaints by card holders and operators of authorising systems, for damages to devices provided as well as the loss or destruction of the devices provided as well as the consequences thereof, for which the contract partner has to arrange appropriate insurance cover.

V. Delivery and Delivery Time

1. Deliveries shall be „ex works“ and at the MERCHANT’S risk. The dates and deadlines stated by COMPUTOP shall be with-out obligation unless explicitly otherwise agreed in writing.

2. The delivery period shall commence unless otherwise agreed at the earliest with the dispatch of the order confir-mation by COMPUTOP, however not before submission of the documents, releases, authorisations to be procured, if neces-sary, by the MERCHANT as well as compliance with the terms of payment agreed from this and other orders/deliveries/ser-vices by COMPUTOP and other obligations of the MERCHANT to COMPUTOP.

3. A delivery period shall be adhered to if the readiness for dispatch has been advised or the delivery item has left our company or the works of our suppliers before expiry of the delivery date.

4. The delivery period shall be extended in the case of busi-ness obstructions outside the responsibility of COMPUTOP and/or COMPUTOP’s suppliers, particularly due to strikes, le-gal lock-outs, official orders as well as any other events of force majeure. The delivery period shall be extended by the duration of the obstruction in addition to an adequate start-up period. The same shall apply to malfunctions, lack of raw materials or operating equipment, lack of transport methods as well as non-punctual, improper or insufficient delivery by our suppliers if COMPUTOP is not responsible for these cir-cumstances and if these have, verifiably, a significant influ-ence on the delivery of the item. Above circumstances shall also not be COMPUTOP’s responsibility if they arise during an already existing delay. COMPUTOP shall advise the MER-CHANT of the start and expected end of such obstacles as soon as possible. The above limitations shall not apply to firm deals.

5. If the MERCHANT does not state his intention already when setting the deadline whether he further insists on fulfillment or wants to make use of his right to withdraw, COMPUTOP shall be released from the obligation to perform until such a statement is received by COMPUTOP. If the purchaser has not stated his intention within a further period of two weeks, COMPUTOP shall be entitled to withdraw from the contract provided COMPUTOP has informed the customer in writing. The MERCHANT’S right to demand compensation shall remain unaffected by this and, as a matter of fact, shall be conform to the requirements of section XII.

6. Part deliveries within the delivery periods stated by COM-PUTOP shall be permissible insofar as they are reasonable for the MERCHANT and there are no disadvantages of use to him.

7. The scope of delivery shall be determined by COMPUTOP with the written order confirmation. Over and under deliver-ies of up to 3% of the confirmed quantity shall be permissible for electronic components against corresponding adjustment of the invoice price. To this extent, under deliveries shall not be considered to be insufficient quantities and shall not con-stitute a defect.

8. Changes in form or construction which result from an im-provement of technology or a requirement of the legislator respectively shall remain reserved during the delivery period provided the delivery item is not changed significantly by it and the changes are reasonable for the MERCHANT. Neither shall changes to this extent constitute a defect.

VI. Payment, Set-off

1. Prices shall be ex works plus the statutory value added tax applicable at the time of delivery and shipping costs.

2. If a claim due to COMPUTOP is not paid by the MERCHANT even after a reminder and expiry of a further deadline of two weeks, all of COMPUTOP’s claims from the business relation-ship with the MERCHANT shall be due without delay. COM-PUTOP shall then be entitled to execute further deliveries only against payment in advance or sufficient security.

3. The MERCHANT can only set off his own claims against COMPUTOP’s claims if these claims are undisputed or legally effective or if this is a claim from the same contractual rela-tionship. The MERCHANT can only assert a right of retention because of own claims from the same contractual relation-ship.

VII. Price Changes

1. Price changes shall be permissible if the time period be-tween conclusion of the contract and agreed delivery date is more than four months. If wages, material costs or market cost prices increase after that, COMPUTOP shall be entitled to raise its price adequately and in correspondence with the price increases. The MERCHANT shall only be entitled to with-draw if the price increase exceeds the rise in the general cost of living not merely insignificantly.

 

VIII. Costs of Cancellation

1. If the MERCHANT withdraws an order placed without jus-tification, COMPUTOP shall have the right to demand up to 10% of the net sales price for the costs incurred by pro-cessing the order and for loss of profit regardless of the pos-sibility to demand fulfillment of the contract or to claim a higher damage. Proof of no or minor damage shall remain reserved to the MERCHANT.

 

IX. Transport, Sales packaging, Disposal

1. Packaging shall become the MERCHANT’S property.

2. The MERCHANT shall assume the obligation to dispose properly of transport packaging after delivery on his own re-sponsibility and at his own expense in accordance with legal regulations.

3. The MERCHANT shall release COMPUTOP from the obliga-tions in accordance with § 4 of the Packaging Ordinance (take-back obligation of transport packaging) and all related claims by third parties, regardless of type.

4. COMPUTOP’s claim to assumption/release in accordance with the above regulations shall not be time-barred until ex-piry of two years after delivery.

5. Upon request, the MERCHANT shall demonstrate to COM-PUTOP that he has taken suitable organisational measures for the proper disposal of transport packaging and how these are implemented in detail. If he has laid down disposal obli-gations with his customers or other third parties, he shall ad-vise COMPUTOP thereof upon request.

X. Acceptance and Transfer of Risk

1. The MERCHANT shall undertake to accept the delivery item within 14 days after notification of readiness for shipment. If delivery by COMPUTOP has not been expressly agreed, hand-over shall be effected at COMPUTOP’s domicile or at the dom-icile of the supplier stated by COMPUTOP.

2. The MERCHANT shall have to check the delivery item with-out delay, however 10 days after acceptance at the latest, for defects or incorrect delivery. He shall have to notify COM-PUTOP of identifiable defects without delay. The conse-quences of § 377 Article 2 HGB are pointed out to him.

3. If the MERCHANT falls behind with acceptance of the object of purchase, COMPUTOP shall be entitled to withdraw from the contract or demand compensation due to noncompliance with the contract after setting a period of grace of 14 days. Legal regulations on the dispensability of setting a deadline shall remain unaffected.

4. Risk shall be transferred to the MERCHANT with collection of the delivery item or with placing the delivery item with the forwarder. If the MERCHANT states he will not take delivery of the delivery item, the risk of accidental loss or accidental deterioration of the delivery item shall be transferred to the MERCHANT at the point of refusal to take delivery.

5. If acceptance of the delivery item is delayed on the MER-CHANT’S request or due to a circumstance for which the MER-CHANT is responsible, COMPUTOP may, after one month from notification of readiness for shipment, charge storage fees of 0,5% of the net sales price of the items for delivery per month commenced, however, not more than a total of 5%. Proof of higher or lower storage fees incurred shall remain reserved to both parties.

XI. Retention of Title

1. COMPUTOP shall retain ownership of the delivery items until full payment of the respective delivery. If the MER-CHANT acts in breach of contract, in particular in the event of a default in payment, COMPUTOP shall be entitled to re-possess the delivery items after setting a grace period and withdrawal from the contract. The legal regulations on the dispensability of setting a deadline shall remain unaffected. After COMPUTOP’s withdrawal from the contract the MER-CHANT shall be obliged to hand over the delivery items.

2. The MERCHANT shall be entitled to resell the delivery items in the ordinary course of business; however, already now, he shall assign all claims to the extent of the purchase price agreed between COMPUTOP and the MERCHANT (including value-added tax) and along with all ancillary rights which he accrues from the resale of the goods, irrespective of whether the delivery items are resold without or after processing. The MERCHANT shall be authorised to collect these claims subse-quent to their assignment. COMPUTOP’s authority to collect the claims themselves shall remain unaffected; however, COMPUTOP shall undertake not to collect the claims provided the MERCHANT duly complies with his payment obligations, is not in delay in payment and has not filed an application for the initiation of insolvency, composition or foreclosure pro-ceedings or has discontinued making payments. In this case, however, the MERCHANT shall be obliged to disclose the as-signed claims and their debtors, to provide all the details nec-essary for collection, hand over all respective documents and advise the debtors (third parties) of the assignment.

3.Processing or alteration of goods by the customer shall always be carried out for COMPUTOP. If the delivery items are processed with other goods not belonging to COMPUTOP, COMPUTOP shall acquire co-ownership of the new product on a proportional basis of the value of the delivery items to the other processed products at the point of processing. The same regulations shall apply to the new product which has emerged through processing as to the items delivered under retention of title.

4. If the delivery items are inseparably mixed with products not belonging to COMPUTOP, COMPUTOP shall acquire co-ownership of the new product on a proportional basis of the value of the delivery items to the other products mixed at the point of time of mixing. The MERCHANT shall safekeep co-ownership for COMPUTOP.

5. The MERCHANT shall not be allowed to pawn nor to assign the goods by way of security. In the case of seizure as well as confiscation or other dispositions by third parties, the MERCHANT shall have to advise COMPUTOP without delay and provide all information and documentation necessary for safeguarding our rights. Law enforcement agencies or a third party respectively shall have to be advised of COMPUTOP’s ownership.

6. COMPUTOP shall undertake to release the securities to which it is entitled upon request of the MERCHANT in so far as they exceed the value of the receivables to be secured, to the extent that these have not yet been settled, by more than 20%.

XII. Warranty

1. In the case of a defect whose cause already existed at the point of transfer of risk, the MERCHANT shall have a right to claim repair or replacement at COMPUTOP’s option. If COM-PUTOP cannot eliminate a defect subject to COMPUTOP’s war-ranty obligation or if further attempts to remedy the defect are not reasonable for the MERCHANT, the MERCHANT may demand a reduction in payment instead of the reworking or withdraw from the contract. In all other respects statutory provisions shall apply.

2. As to the software delivered, COMPUTOP shall warrant that the software fulfills the main functions evident from the pro-gram description. Due to the multitude of data, hardware and operating constellations occurring in practice as well as oper-ating errors a complete lack of defects shall not be guaran-teed. Loss of data cannot be completely excluded either. As a consequence, the MERCHANT shall have to backup data at regular intervals. He shall keep the necessary documents for a possible reconstruction after loss of data.

3. The MERCHANT shall have to advise COMPUTOP of possible defects without delay.

4. The warranty obligation shall not exist if a) the MERCHANT has not used the product in accordance with its intended pur-pose or b) alterations to the product have been effected by the MERCHANT without COMPUTOP’s specific written per-mission.

5. The customer’s right of compensation shall be governed by the conditions set forth in this contract, in particular clause XIV; § 444 BGB shall remain unaffected.

6. The MERCHANT shall only be entitled to a right of with-drawal and a claim for compensation instead of performance due to violation of non-performance-related obligations in ac-cordance with § 241 Article 2 BGB if he has previously given a written warning and COMPUTOP has not eliminated the breach of obligation for the respective products if necessary additional conditions.

 

XIII. Liability for Compensation

1. The MERCHANT’S claims to reimbursement of expenses or compensation regardless of the legal ground shall be limited to damage caused a) intentionally b) grossly negligently or c) slightly negligently in the case of essential contractual ob-ligations by COMPUTOP or a vicarious agent or a contractor. In this respect, essential contractual obligations shall be such obligations of COMPUTOP which are intended to fulfill the rights the MERCHANT has in accordance with the content and the purpose of the contract concluded with COMPUTOP as well as such obligations whose fulfillment allows the proper execution of the contract concluded with COMPUTOP in the first place and on whose observance the MERCHANT regularly trusts and may trust.

2. Liability shall be limited to the extent of typical damages foreseeable for comparable transactions when the contract was concluded or, at the latest, when the breach of duty was committed unless COMPUTOP is liable due to intent or gross negligence by legal representatives or executives of COM-PUTOP.

3. Liability for lost profit shall be expressly excluded.

4. The limitations of liability shall not apply in a case of loss of life, bodily injury or damage to health, in the case of lia-bility in accordance with the product liability law or in the case of further imperative legal liability.

XIV. Industrial Property Rights

1. Unless expressly agreed otherwise, COMPUTOP shall guar-antee that the goods delivered are free from third parties‘ industrial property rights and copyrights (hereinafter: prop-erty rights) within the purpose of the contract and within Germany.

2. COMPUTOP shall not be liable if and to the extent the MERCHANT is responsible for the property rights infringement. This shall apply, in particular, if goods are manufactured on behalf of and in accordance with drafts and specifications of the MERCHANT and the infringement on the property rights is based on the drafts and specifications of the MERCHANT and further if the MERCHANT uses the goods inappropriately or improperly, uses them after modification or in connection with products not delivered by COMPUTOP and thus causes the property rights infringement. For such cases, the MER-CHANT shall have to indemnify COMPUTOP internally from all claims by the third party.

3. In the event of a property rights infringement for which COMPUTOP is liable, COMPUTOP shall be entitled at its own option a) to either acquire a right of use at COMPUTOP’s own expense so that the goods may be resold or b) modify the goods in a way that they do not infringe on property rights any more. If this is not possible for COMPUTOP under reasonable conditions, the MERCHANT shall be entitled to assert his legal rights of withdrawal and reduction.

4. The MERCHANT shall have to advise COMPUTOP without delay of the claims asserted by a third party. He shall have to let COMPUTOP make the decision concerning all defense measures and negotiations and shall have to support COMPUTOP fully in its defense against claims. He may not acknowledge the infringement without consulting with COMPUTOP in advance. If he discontinues the sale of the goods for minimising damages or other reasons, he shall have to advise the third party that this does not imply an acknowledgement of an infringement on the property rights.

XV. Limitation Period

1. Claims for defects and claims by the merchant arising from this relationship shall lapse within twelve months of transfer of risk.

2. Unless they are connected to a defect, claims for compensation shall lapse within a year from the end of the year in which the claim arose and the MERCHANT learned of the circumstances constituting the claim or should have learned thereof without gross negligence.

3. The regulations in clause 1 and 2 above shall not apply insofar as the claims are based on an intentional or grossly negligent violation of duty by COMPUTOP, in a case of loss of life, bodily injury or damage to health, in the case of liability in accordance with the product liability law or in the case of further imperative legal liability; otherwise § 444 BGB shall remain unaffected.

XVI. Return of old Appliances

1. The MERCHANT shall ensure to dispose properly of the goods delivered immediately after the definite termination of use (so-called old appliance) at his own expense in accordance with the statutory provisions.

2. The customer shall indemnify COMPUTOP and its suppliers from the obligation in accordance with § 10 Article 2 ElektroG (manufacturer’s take-back obligation) and all connected claims by third parties regardless of type.

3. The claim of COMPUTOP and/or its suppliers to acceptance/exemption according to the above regulations shall not lapse before expiration of three years from the definite termination of the use of the goods delivered. This term shall begin, at the earliest, with receipt of written information by the customer at COMPUTOP concerning the termination of use.

4. Upon COMPUTOP’s request, the MERCHANT shall furnish proof to COMPUTOP that he has taken appropriate organisa-tional measures for the proper disposal of old appliances and which form they take in detail. If he has entered into commitments concerning the obligation of disposal with his cus-tomers or other third parties, he shall advise COMPUTOP upon request.

XVII. Data protection

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.

2. COMPUTOP is acting as a data processor after Article 28 GDPR on behalf of the MERCHANT. Therefore, COMPUTOP additionally provides the MERCHANT with a separate data processing agreement which covers the contract contents legally required by Article 28 GDPR.

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, to obtain consents from data subjects.

XVIII. Confidentiality / Advertising

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 con-tract and who are bound by a corresponding obligation to secrecy.

2. The MERCHANT undertakes in particular to take measures to keep disclosed passwords secret and to monitor this. COM-PUTOP 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.

3. The MERCHANT grants COMPUTOP to a worldwide, nontransferable, nonexclusive license during the term of the contract to use the merchant`s name, trademarks and company logo, for advertising and marketing purposes and COMPUTOP is entitled to promote the commercial relationship on the COMPUTOP website or in other media (reference partner).

XIV. Place of jurisdiction, choice of law

1. For all disputes arising out of the contract, the MERCHANT shall have to bring action before the court having jurisdiction over COMPUTOP’s headquarters. COMPUTOP shall also be entitled to bring action at the MERCHANT’S headquarters.

2. Only German substantial law shall apply excluding the provisions for the International Sale of Goods (CISG) as well as the provisions of German private international law which would lead to application of a foreign legal system.

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