Terms of Service
General Terms and Conditions of Use for payever Services
1
Scope
1.1
These General Terms and Conditions of Use (hereinafter, the “Terms”) of payever GmbH, Rödingsmarkt 20, 20459 Hamburg (hereinafter, “payever”, “we” or “us”) apply for the use of the services provided by us through our website and apps (the “payever Services”).
1.2
Terms and Conditions of the User which are contrary to or deviate from these Terms are not recognized, unless payever has expressly consented to their applicability in writing. This also applies if payever provides its Services without reservation while having knowledge about terms and conditions of the User which are contrary to or deviate from these Terms.
1.3
The General Terms and Conditions for Business Customers additionally apply with regard to Business Customers. In the case of contradictions between these present Terms and the General Terms and Conditions of Use for Business Customers, the corresponding provisions in the General Terms and Conditions of Use for Business Customers have priority.
1.4
These present Terms apply without regard to whether the User uses the payever Platform by means of a web browser or an app or otherwise.
2
Definitions
2.1
“Third Party Social Media” are Facebook, Linkedin, Instagram, Google and Twitter or other comparable services.
2.2
“External Service Providers” are all third parties, including banks and payment service providers which offer services for Commercial and Private Customers through the payever Platform.
2.3
“Business Customers “ are those customers which register as Business Customers.
2.4
“Customers” are Business Customers and Private Customers.
2.5
“Users” are the individual natural persons who actually use the payever platform through a Business Customer Account or a Private Customer Account, without regard to whether such persons are Business Customers or Private Customers.
2.6
“payever Payment System” means the payment and financing services available through the payever platform.
2.7
“payever Services” mean all services offered by payever through the payever platform, including the payever payment system as well as the access to the services offered by External Service Providers through the payever Platform.
2.8
“payever Platform” is the web-based solution through which the payever Services can be used.
2.9
“Private Customers” are those Customers who register as Private Customers at the time of registration.
2.10
“Transfer Point” is the router exit to other networks from the computer center of payever or a subcontractor of payever.
2.11
“Payment Services / Payment Service Providers” are all commercial providers of payment systems and financing services.
3
payever Services
3.1
payever offers to Business Customers the possibility of offering the own products and services through the payever Platform and using other services or solutions of payever or other External Service Providers.
3.2
The registration on the payever Platform is generally free of charge. There can be charges for individual payever Services or External Service Providers. The Terms of the respective services and solutions apply.
3.3
Business Customers are required to provide the information on the platform required by law.
3.4
Private Customers can obtain products and services through the payever Platform as well as use other services and solutions of payever.
3.5
Which specific services are available at the respective moment result from the information on the payever Platform. Especially some services can only be used if certain technical prerequisites are satisfied at the User or if the User concludes a contract with Business Customers or External Service Providers. The Business Customers or External Service Providers have the sole authority to decide about whether they conclude a corresponding contract.
3.6
payever is entitled to regularly expand the range of services and functions of the service or, when needed, modify them, taking into account the justified interests of the Users, in order to adapt the services to new technical requirements or specific requirements in the market or to implement new functionality. Such expansions and adaptations will normally be made by updates, upgrades or patches to the payever Services.
3.7
Changes with regard to the functions as well as with regard to the operation and design of the services can result from the modifications described in Clause 3.5. payever will inform the Users in a timely manner in advance about such changes if the expansions or adaptations are material or have a material influence on the existing Business Customers or Private Customers when using the payever Services.
3.8
The advance notification intended for material modifications in Clause 3.5 does not need to be issued if a change is intended to be an urgent correction for improper functioning of the service.
4
Communications and solicitation
4.1
Users with a Private Customer Account can be sent notifications and recommendations in the context of the payever Services (personal offer) if the User selects or fulfills a specific category of products and services or follows certain Business Customers on the payever Platform and has issued consent to the Business Customer for receiving recommendations.
4.2
payever will also send to the User personalized recommendations by email based on the User’s preferences and the User’s type of use of the payever Services if the User has consented under the payever Services. The consent can already be issued upon registration or later using the User Account and is revocable at any time.
4.3
A Business Customer has the possibility of communicating directly with Private Customers through the payever Services by means of various messaging services (for example, chat, email, iMessage, Facebook, Facebook Messenger, Telegram, Slack, Skype, Twitter, Instagram, WeChat, Line or also WhatsApp). Business Customers and Private Customers can also communicate with payever or among themselves using such messaging services. The respective terms and conditions of use and data protection statements of the services used by the User apply in this regard.
5
User Account
5.1
In order to use the payever Platform in its full extent, it is necessary to set up a personal User Account. The User can either register through the User’s email address or by means of an account that already exists at a third-party service provider. When registering with the personal email address, the User receives a link for authentication after having provided all information in the registration screen. The registration at payever is completed only when the Customer confirms this link.
5.2
The password which enables the User to access the personal area must be treated with strict confidentiality and cannot be disclosed to third parties under any circumstances. The User will take the appropriate and reasonable measures to prevent third parties learning about the User’s password.
5.3
The User also has the possibility of registering at payever through an existing user account at third party service providers, especially in a social media platform. Upon confirmation with the registration button in the desired service, a link will be established to the respective service provider. The data protection provisions and terms and conditions of use of the respective third-party provider apply for the use of the third-party services.
5.4
The chosen third-party service provider may be authorized by the User to forward the information marked as public in the respective account as well as possibly the email address and the date of birth of the User to payever.
5.5
At the present time, registration at payever is especially possible through the following service providers in the context of their respectively linked data protection statements.
5.6
Facebook Inc., 1601 S California Ave, Palo Alto, California 94304, USA;
http://www.facebook.com/policy.php;
5.7
Google Inc., 1600 Amphitheater Parkway, Mountainview, California 94043, USA;
https://www.google.com/intl/de/policies/privacy/;
5.8
Twitter, Inc., 1355 Market St, Suite 900, San Francisco, California 94103, USA;
https://twitter.com/privacy;
5.9
LinkedIn Corporation, 2029 Stierlin Court, Mountain View, California 94043, USA;
http://www.linkedin.com/legal/privacy-policy.
5.10
After registration, the User choses whether the User would like to use the User’s account for commercial or private purposes. It is also possible to use an account both for private as well as commercial purposes.
5.11
When using the Private Customer Account, the User acts as a private person for purposes of the payever Services and is a consumer within the meaning of § 13 German Civil Code [ Bürgerliches Gesetzbuch, “BGB”]; i.e. the User concludes any transactions for purposes which cannot be primarily attributed to either the User’s commercial or independent professional activities.
5.12
The User can use various services to the Private Customer Account; for example, the User can select the User’s third categories or follow certain Business Customers or evaluate them.
5.13
When using the Business Customer Account, the User acts as a business within the meaning of § 14 BGB for purposes of the payever Services; i.e. the User acts when concluding a transaction in the performance of the User’s commercial or independent professional activity, or the User is acting for a business.
5.14
The User can use various services through the Business Customer Account, for example, offering for sale products and services in the payever system and soliciting for them or using special solutions and services of payever or other third-party providers. A further conclusion of a contract may be necessary for this purpose under certain circumstances.
5.15
payever reserves the right to monitor User Accounts as needed and if there are specific reasons for a justified suspicion about improper use, whereby payever will always take into account the justified interests of the Users.
5.16
payever is authorized to block User Accounts if the User has violated the provisions in these Terms.
6
Availability
6.1
The general operating hours of the payever Platform are Mo-Su 00:00 – 24:00 hours. payever will use its efforts within the area it can influence, in order to have high availability of the platform. However, payever does not owe any minimum availability of the platform, unless agreed otherwise with individual Users.
6.2
payever does not owe establishing and maintaining the data connection between the User’s IT systems and the Transfer Point. payever is not responsible for incorrect functioning on the other side of the Transfer Point. The User is responsible for obtaining and maintaining the hardware and connections to public communications networks needed by the User. The costs for establishing the online connection as well as maintaining it on the side of the User are borne by the User. payever is not liable for the security, confidentiality or integrity of data communications carried out through communications networks of third parties. payever is also not liable for problems in data transmission caused by technical errors or configuration problems on the part of the User.
7
Legal relationships between Private Customers, Business Customers, third-party providers and payever
7.1
The payever Platform enables Users to conclude contracts with each other, be it as Private Customers or Business Customers, as well as with External Service Providers. payever is not a participant in these contractual relationships.
7.2
payever is especially not liable for the performance of claims in the contractual relationships described in Clause 7.1.
8
Contract term / termination of use
8.1
Contracts about use of the payever Services free of charge are not subject to any fixed term and end automatically as soon as the User finally deregisters from the payever Platform or closes the User’s account.
8.2
The end of use of the payever Platform does not affect any existing contractual relationships between the User, Business Customers and External Service Providers.
8.3
Contracts for the use of the payever Platform also end automatically if payever decides to shut down the operation of the platform or individual services due to commercial reasons, competitive strategy, information technology, security technology or other reasons or to offer the functionality through other solutions. payever will inform its Users about this reasonably in advance.
8.4
Subject to any contractual provisions otherwise, payever and the User are entitled at any time to terminate the use at any time without stating reasons.
9
Responsibility of the User
9.1
Exclusively the User is responsible for the content and correctness of the data and information transmitted by the User.
9.2
The User is required to always maintain the data entered on the payever Platform at the most current status.
9.3
The User is required not to transmit any data which had content which infringe upon the rights of third parties or violate existing law.
9.4
The User is required to comply with all applicable laws when using the payever Platform.
9.5
payever reserves the right to block User Accounts in the case of violations of the law and rights or to delete such accounts or to take other measures which appear necessary, in order to prevent further violations.
9.6
The User will be attributed with actions taken through the User’s User Account; the User is especially bound by the declarations of intent issued through the User Account. The situation is different if it was obviously recognizable for payever that it was not the User that was acting or if the User proves that the act was taken by a third party without the User having any fault.
9.7
The Users must report to payever without undue delay any unauthorized action by third parties using the Users’ User Accounts. If a User has a reason to suspect that a third party is using the User’s User Account, that User is required to change the User’s access data without undue delay.
9.8
The User is responsible for producing backup copies of any data stored on the payever Platform or sent to the platform. The payever Platform is not suited for backing up data.
10
Prohibited offers and use
10.1
Improper offerings and contributions are prohibited. payever can deactivate or delete them without any prior notification. An improper profile, offering or an improper contribution or use of the payever Services exists especially in the following cases:
10.2
false and/or incorrect information;
10.3
contributions outside the possibilities expressly provided by payever for advertising are misused as pure advertising space for the own business, the own shop, the own items or services or similar purposes;
10.4
the attention of persons conducting searches is directed to an offering with non-specific or even false information (this includes, but is not limited to, incomplete offerings, false statements);
10.5
content is made available, offered or exchanged in violation of applicable law or the rights of third parties;
10.6
these Terms and any further general terms and conditions of payever are violated.
10.7
The following use of the services offered by payever is prohibited; the User Account can be blocked for violations:
10.8
sending spam or other disruptive or commercial communication if the addressee has not granted consent;
10.9
sending, storing or otherwise distributing content which completely or partially has the purpose or has the goal of inciting to hatred against parts of the population or against a specific national, racial, religious or ethnic group or which calls for violence or arbitrary measures against such groups or which infringes upon the human dignity and general rights of privacy of other parties by insulting parts of the population or one of the above designated groups or maliciously denigrating or insulting them;
10.10
sending, storing or otherwise distributing content which describes children or minors in unnatural sexual poses which are pornographic, especially if such content involves violence, the sexual abuse of children or minors or sexual acts of humans with animals, as well as sending, storing or otherwise distributing content which violates provisions for the protection of minors due to other reasons, especially content falling under the applicable norms in the Agreement between the German States for the Protection of Young People in Media [Jugendmedienschutz-Staatsvertrag]; this also applies for content which just references or indicates such content and/or purposes;
10.11
sending, storing or otherwise distributing content soliciting games which require a permit from the government (especially games of chance within the meaning of § 284 German Criminal Code [Strafgesetzbuch, “StGB”]), or involve or solicit chain letters, pyramid schemes, betting or related matters;
10.12
sending, storing or otherwise distributing content that has the tendency to infringe upon rights of third parties due to obscenity, threats, insults, libel, content injuring personal honor, racist content, content hostile to foreigners or which otherwise infringes upon rights of third parties;
10.13
sending, storing or otherwise distributing content which infringes upon privacy or intimacy or otherwise infringes upon the general publication right or the right of third parties with regard to their own image;
10.14
sending, storing or otherwise distributing harmful software and malware, such as e.g. viruses, worms, Trojans or harmful computer codes, files, scripts, agents or programs;
10.15
sending, storing or otherwise distributing or using programs which are capable of disrupting the operations of payever or influencing or hindering the operations without authorization;
10.16
sending, storing or otherwise distributing content which infringes upon copyright or protected positions of third parties related to work product (e.g. photographs for which the User does not have the necessary rights);
10.17
attempting to obtain unauthorized access to the payever Service or to individual modules, systems, applications or User Accounts or granting or procuring such unauthorized access for third parties;
10.18
storing, sending or otherwise distributing other illegal content, and
10.19
distributing content and/or writings which are hazardous to minors, pornographic content (e.g. naked pictures, pornographic texts, writings and statements etc.), content and/or writings which glorify violence and/or insight against and/or defame populations as well as other content and/or writings which violate good morals or the law.
11
Rights of use for the payever Platform and any app
11.1
The software forming the basis of the payever Platform as well as any app is protected by copyright. payever is the sole holder of all intellectual property rights.
11.2
To the extent the User uses an app, the User is granted a non-transferrable, non-exclusive right of use to use the app for the purpose of accessing the payever Platform which is limited by time to the term of the contract.
11.3
The User is granted the non-transferrable, non-exclusive right limited to the term of the contract to access the functionality of the platform by way of the internet as well as any app for the purposes of this Agreement. The User does not receive any rights that go beyond this.
11.4
After the end of the contract for use, the rights for use automatically revert to payever.
11.5
The User does not acquire any right to the source code.
12
Rights of use to the User’s content
12.1
In order to use the payever Platform in its full extent, it is necessary to set up a personal User Account. The User can either register through the User’s email address or by means of an account that already exists at a third-party service provider. When registering with the personal email address, the User receives a link for authentication after having provided all information in the registration screen. The registration at payever is completed only when the Customer confirms this link.
12.2
The password which enables the User to access the personal area must be treated with strict confidentiality and cannot be disclosed to third parties under any circumstances. The User will take the appropriate and reasonable measures to prevent third parties learning about the User’s password.
12.10
payever can transfer or license the above-designated rights of use to third parties without requiring consent.
12.11
Solely payever decides in its free discretion whether and if so, in which form, at which point in time and how frequently the content or the reflections of the content are used and whether and if yes, in which form they will include a corresponding designation of the author and/or the source. The User undertakes not to assert any claims against payever and/or users authorized by payever based on copyright and/or other publication rights.
13
Indemnity
13.1
The User undertakes to indemnify payever against all claims of third parties, including costs for legal services, which are based on use of the payever Platform by the User which is not in accordance with the contract or constitutes misuse and/or is illegal if the User is at fault.
13.2
The User will support payever in defending against these claims, especially by providing all information required for the defense. The User is required to compensate the damages which payever incurs as a result of third parties successfully enforcing such claims.
14
Liability
14.1
payever as well as its legal representatives and agents are liable only for fraudulent, intentional or grossly negligent misconduct, subject to the following reservation in Clause 14.2. In the case of minor negligence, payever is liable only for the violation of elementary contractual duties; these are such duties which must be complied with as a matter of particular importance in order to achieve the purpose of the contract and which the User can rely on being complied with. The liability is then limited to the foreseeable, typical damages under the contract.
14.2
The above exclusion of liability does not apply for liability for damages resulting from injury to life, physical integrity or health. The exclusion of liability also does not apply to the provisions in the German Product Liability Act [Produkthaftungsgesetz]. Aside from this, this provision on liability in this Clause 14 is conclusive. It applies with regard to all claims for damages, regardless of the legal basis of such claims, especially also for pre-contractual claims or claims which are ancillary to the contract.
14.3
The User is required to notify payever about any damages without undue delay at least in text form or to have payever record the damages so that payever is informed as early as possible and can still mitigate the harm, possibly together with the User.
15
Final provisions
15.1
The contract language is German for Customers with their registered offices or domiciles in countries in which German is the official language, and for all other Customers, the language of the contract is English.
15.2
In the case of inconsistencies between the version in the respective contract language and the version of these General Terms and Conditions in another language, the version in the respective language of the contract has priority.
15.3
Exclusive jurisdiction for all disputes under this Agreement is agreed to be the registered office of payever in Hamburg if the User is a commercial party, a legal entity existing under public law or a fund existing under public law or if the User has no place of general jurisdiction in the Federal Republic of Germany.
15.4
In the event that the User is a consumer, reference is made to the possibility for dispute resolution out of court in accordance with Art. 14 of the Regulation (EU) No. 524/2013 – the Online Dispute Resolution (ODR) Regulation. Details about this can be found in this regulation at the link:
http://ec.europa.eu/consumers/odr.
15.5
To the extent not prevented by mandatory provisions in the law in the legal system where the User is domiciled, German law applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
15.6
payever reserves the right to amend these Terms without stating any reasons. In such as situation, payever will announce such a change in text form at the latest four weeks prior to the change taking effect. If the User does not object to the change within a period of three weeks after receiving the notification about the change, the change will become part of the contract upon expiration of the announced time period. payever will point out to the User in every announcement of changes the possibility to object, the above-mentioned deadline and the legal consequences of allowing the deadline to pass without making use of the possibility to object. However, a corresponding change can only be validly agreed in accordance with this Clause 15 if the change does not lead to a material shift in the relationship between performance and consideration to the detriment of the User.
15.7
If the User objects to the changes and the changes involve a payever Service for which payment is charged, the contract will continue at the previous terms and conditions. However, the contract will not continue if it is not possible for payever to continue the contract due to material technical or business organizational reasons and payever notifies the User about this. The changes in such a situation will become part of the contract, but the User has a special right to terminate. payever will inform the User about the special right to terminate and set a deadline of 4 weeks for the User to exercise this right. If the User does not exercise the special right to terminate within this period, the contract will continue at the new terms and conditions. payever will also point out this legal consequence to the User.
15.8
The invalidity of individual provisions does not affect the validity of the remaining provisions in these Terms.
Date [18.05.2018]
General Terms and Conditions of Use for payever Services
Preamble
These General Terms and Conditions (hereinafter, the “Ts&Cs”) apply for the use of the services of payever GmbH, Rödingsmarkt 20, 20459 Hamburg (hereinafter, “payever”, “we” or “us”) which are directed exclusively towards businesses [Unternehmer] within the meaning of § 14 German Civil Code [Bürgerliches Gesetzbuch
, “BGB”] as customers (hereinafter, the “Business Customer”, or “you”). Pursuant to § 14 BGB, a business is every natural personal legal entity or partnership with legal capacity which concludes contracts in the course of its commercial or independent professional activity.
payever provides to you a web-based platform (the “payever Platform”) through which payever offers various services. The payever services include especially acting as a technical connection to payment and financing services of third parties and the technical processing of payments and financing transactions for web shops and stores (the “payever Payment System”), but also other services for Business and Private Customers.
With regard to the payment and financing services, payever cooperates with various payment service providers and banks in order to be able to offer various types of payment options for Business Customers. The Business Customer has the possibility of selecting the payment options which the Business Customer would like to integrate in its shop system (e.g. PayPal or Credit Card). After verification of the Business Customer and its approval of the Business Customer by their respective payment service provider or the bank, the Business Customer can then offer the payment services selected by the Business Customer to end-customers in the Business Customer’s shop system after installation of a corresponding plugin or through the own payever interface function. In addition Business Customers are able to offer payment services through a Point-of-Sale solution.
In addition, the payever Platform offers to Business Customers numerous additional functions in addition to the payment services for the purpose of optimizing the purchasing process in web shops and stores (especially the creation of an online shop, a website or a Point-of-Sale solution, services in the area of marketing and communication with end-customers and numerous other applications to optimize the sale of goods and services through the internet or in stores). The Business Customer always remains the contract partner for the end-customer. End-customers can voluntarily register as payever private customers during the purchase process or directly on the payever Platform at any time.
16
Definitions
16.1
“Bank” means only those credit institutions which have a permit from the relevant national public authorities, for example, the Federal Financial Supervisory Authority [Bundesaufsichtsamt
, “BaFin”] under § 32 German Banking Act [Kreditwesengesetz, “KWG”].
16.2
“Third Party Social Media Providers” are Facebook, LinkedIn, Instagram, Google and Twitter or other comparable services.
16.3
“External Service Providers” are all third parties, including banks and payment services which offer services for the Business Customers through the payever Platform.
16.4
“End-Customer” is the respective customer of the Business Customer which uses the Business Customer’s services or purchases the products of the Business Customer.
16.5
“Users” are the individual employees of the Business Customer concluding the contract with payever who use the payever Platform for the Business Customer.
16.6
“payever Payment System” means the payment and financing services available through the payever Platform.
16.7
“payever Services” mean all services offered by payever through the payever Platform, including the payever Payment System with access to the External Service Providers using the services offered with the payever Platform.
16.8
“payever Platform” is the web-based solution through which the payever Services can be used.
16.9
“Transfer Point” is the router exit from the computer center of payever or a subcontractor of payever to other networks.
16.10
“Parties” are payever and the respective Business Customer
16.11
“Payment Services/Payment Service Providers” are all commercial providers of payment systems and financing services.
17
Scope and relationship to other provisions
17.1
These Ts&Cs apply for all payever Services used by the Business Customer. The scope also includes services which we provide through websites operated by payever (e.g. “www.payever.org” “www.payever.de”, “www.getpayever.com”) and related domains and subdomains or by means of payever apps or similar programs for all devices, but also all other services in connection with the payever Platform.
17.2
It is possible that supplemental terms and conditions of contract may apply for individual payever Services.
17.3
To the extent that services are provided by External Service Providers, the Business Customer and the External Service Provider establish a separate contractual relationship with own rights and duties about such services.
17.4
Deviations from these Ts&Cs are only deemed to have been agreed if we have expressly confirmed them in writing. The mere omission of an objection on our part against other general terms and conditions does not have the result that they are deemed to have then been agreed.
17.5
To the extent any existing supplemental description of services or other terms and conditions of contract are contrary to the content of these Ts&Cs, these Ts&Cs apply unless the supplemental description of service expressly states that a deviation from these Ts&Cs is intended.
17.6
There are no oral side-agreements to these Ts&Cs.
18
Conclusion of the contract
18.1
The contract for the payever Services between you and payever is concluded by the customer setting up a customer account and registering as a Business Customer. Before the customer can use any services, however, the customer may have to submit additional documents or take additional steps.
18.2
To the extent the customer must take additional steps to use individual services, the corresponding conclusion of a contract occurs by the respective service being activated for the customer.
18.3
All statements by payever in advertising materials, on the website or in apps are non-binding and constitute neither an offer nor a statement about quality.
18.4
The contract language is German for Business Customers in Austria, Germany and Switzerland. The English version of these Ts&Cs is the binding version for Business Customers in other countries.
19
Registration and activation of the payever Services
19.1
The use of the payever Services requires successful registration with establishment of a payever customer account.
19.2
After registration in the website, in one of the payever apps or another method, the User will receive a confirming email together with an activation link for the purpose of completing the set-up of the User’s customer account. If the User sets up a customer account when making a payment in a web shop, we will send the access data to the stated email address and will set up the customer account in parallel.
19.3
payever examines the request from the Business Customer for individual payment services by inquiring about additional information (e.g. excerpt from the commercial register, list of shareholders, registration with the business administration authorities [Gewerbeanmeldung] and similar items) in order to activate the payever Payment System.
19.4
In the case of individual services offered by External Service Providers, there will be a further verification by the respective External Service Provider prior to activation which might include a check of the credit standing and risks with regard to the respective Business Customer. These verifications will be made in the sole responsibility of the respective External Service Provider without any involvement on the part of payever.
19.5
After verification of the request, payever will issue an acceptance or rejection with regard to the services you would like to have. An acceptance or rejection can also relate to individual types of payment. The acceptance can also occur by way of automatic activation. In the case of a rejection, the service affected by the rejection cannot be used by the Business Customer. The Business Customer accordingly has no claim that the Business Customer can use a specific payever Service, e.g. a specific payment option.
19.6
The selection of one of the payment services not yet used by the respective Business Customer can require the performance of a (further) check of the credit standing and risk related to the Business Customer in order to be admitted to the respective new payment service.
19.7
The payever customer account is protected with a password. The password which enables access to the personal area and, thus, also allows data collection and storage, must be treated strictly confidential and cannot be disclosed to third parties under any circumstances. The Business Customer will take the appropriate and reasonable measures to prevent third parties learning about the Business Customer’s password. The Business Customer must inform the individual Users of the Business Customer accordingly and impose corresponding obligations on them.
19.8
The data placed in the payever customer account must always be maintained in the current status. If a correction of the data is not possible through the online offering of payever, the changes can also be notified by email or regular mail.
19.9
payever would like to inform you through the payever customer account or through the email address provided by the Business Customer about changes in the payever Platform or also provide information about the own products which are similar to the products you use, to the extent permitted by law. However, if you do not (any longer) wish to have any direct advertising, you can object at any time using the email address with a letter to payever GmbH, Rödingsmarkt 20, 20459 Hamburg, or by email to
service@payever.de
with the reference. Please use the email address to which you would no longer like to receive this advertising information or provide us a corresponding email address when you write to us.
19.10
The Business Customer is required to take appropriate measures to make sure that the Users to whom the Business Customer has granted access to the customer account also comply with the duties imposed on the Business Customer under these Ts&Cs. Violations by the Users will be treated as a violation of the own duties by the Business Customer.
20
Registration with a customer account at Third Party Social Media Providers
20.1
In addition to registration with the email address at payever, there is also a possibility for the User to register for payever Services through an existing customer account at third party providers, especially on social media platforms such as Facebook, Twitter, Google or LinkedIn
20.2
By confirming on the registration button of the desired service, a link to that service will be established, for example, to facebook.com, google.com or twitter.com. The provisions on data protection and terms and conditions of use of the respective third party provider apply for using the third party provider’s services. The selected third party provider is authorized as appropriate by the Business Customer to forward to payever the information designated as public in the respective account as well as, for example, the email address and the date of birth stored with the respective service provider.
The addresses of the current Third Party Social Media Providers through which a registration with payever is possible and the corresponding URL with their information about data protection are:
20.3
Facebook Inc., 1601 S California Ave, Palo Alto, California 94304, USA;
http://www.facebook.com/policy.php;
20.4
Google Inc., 1600 Amphitheater Parkway, Mountain View, California 94043, USA;
https://www.google.com/intl/de/policies/privacy/;
20.5
Twitter, Inc., 1355 Market St, Suite 900, San Francisco, California 94103, USA;
https://twitter.com/privacy;
20.6
LinkedIn Corporation, 2029 Stierlin Court, Mountain View, California 94043, USA;
http://www.linkedin.com/legal/privacy-policy.
21
payever Services
21.1
Unless expressly provided otherwise, the payever Services are offered to the Business Customer free of charge.
21.2
payever offers various services through the payever Platform. The Business Customer can determine by itself which specific payever Services the Business Customer would like to use.
21.3
The use by the Business Customer is subject to additional terms and conditions for certain payever Services, for example, the Business Customer must accept additional terms and conditions. As a general rule the Business Customer has no claim that specific payever Services be provided or activated for the Business Customer.
21.4
The payever Services also include access to services offered and rendered by External Service Providers. payever offers in the payever Platform only the technical platform for the integration of these services offered by External Service Providers in the website, the apps or other programs of the Business Customer.
21.5
payever states in the descriptions for each service whether a service offered by an External Service Provider or a payever Service is involved.
21.6
The Business Customer can especially use the payever Payment System which makes it possible to integrate various payment options in the Business Customer’s own website. All payment options are offered by External Service Providers. In this situation payever also only makes it possible to technically integrate the payment options.
21.7
An independent contractual relationship between the Business Customer and the respective External Service Provider is concluded when using the payment options or other services offered by External Service Providers. The respective External Service Provider and not payever owes the respective service. This contractual relationship is subject to separate terms and conditions. The Bank or the respective payment service provider can make the offering of the respective payment option dependent on additional terms and conditions.
21.8
The accounting for the payment options is carried out between the Business Customer and the Bank or the payment service provider operating the respective payment option.
21.9
payever offers communication services on the payever Platform. These communication services make it possible to integrate communication channels in the web shop, the website or apps and other programs of the Business Customer. The Business Customer can especially use the communication services in order to communicate directly with the Business Customer’s End-Customers. The Business Customer is responsible on its own for making sure that the communication services have the functionality which the Business Customer wants.
21.10
payever offers marketing services on the payever Platform. payever carries out for the Business Customer the respectively agreed marketing measures in these services. The details are set forth in the order issued by the Business Customer.
21.11
payever may also charge for individual payever Services. The exact scope of service and the resulting costs can be reviewed at payever’s website. If the Business Customer uses payever Services which involve fees, the accounting will take place between the Business Customer and payever.
21.12
payever reserves the right to have all payever Services rendered by third parties.
21.13
If an End-Customer orders services or goods from the Business Customer, the corresponding contract comes into existence only between the Business Customer and the End-Customer. The Business Customer remains responsible for the invoicing and requesting payment from the End-Customer. Only the Business Customer is also responsible towards End-Customers for duties to notify with regard to the purchased goods / services, especially any changes in invoices due to returns and/or a cancellation, discounts or credits.
21.14
The payment by the End-Customer can be reversed by the Bank or the payment service provider if the Business Customer violates one or more of the duties set forth in these Ts&Cs, especially in Clauses 6 and 9, or if one of the following situations exists:
21.22
If the Bank or the payment service provider incurs costs for the reversal, the Business Customer must bear these costs. If the existence of one or more of the above-mentioned situations is already identified when checking the credit standing, however, there will be no payment.
22
Operation of the payever Platform
22.1
payever provides the payever Platform to the Business Customer at the Transfer Point with an availability on average in the contract year of at least 99 %. payever accordingly does not offer the payever Platform continuously. The Business Customer accordingly has no claim for full or problem-free access or use of the Platform or the services offered through the Platform at all times and without interruption. The Parties understand availability to mean the technical ability to use the Platform as well as the interfaces provided by the Business Customer for the transfer of data at the Transfer Point. Down-times resulting from maintenance and software updates do not constitute available time; this work will be carried out if possible outside normal business hours during the time between 20:00 hours and 07:00 hours CET.
22.2
The promised availability does not include times in which the payever Platform cannot be reached due to technical or other problems for which payever is not responsible.
22.3
payever intends that the payever Platform will always correspond to the state-of-the-art in technology. payever is entitled to make regular updates or upgrades to the Platform in order to adapt the Platform to new technical needs or to implement new functions. payever will inform the Business Customer in a timely manner in advance, if possible, about the planned updates or upgrades. Advance notification is especially not necessary if an update or upgrade is urgently needed to correct errors in the platform.
22.4
If and to the extent the provision of a new version or change in functionalities of the payever Platform involves a change in the agreed features of the Platform with regard to services for which there is a charge, payever will make sure that the suitability of the platform for use in accordance with the contract is not materially restricted. The provisions on amendments to the Ts&Cs in Clause 18 apply for material, subsequent changes involving a change in the agreed quality of the payever Platform.
23
Technical prerequisites
23.1
payever does not owe the establishment and maintenance of the data connection between the IT systems of the Business Customer and the Transfer Point. payever is also not responsible for errors in functioning downstream from the Transfer Point. The Business Customer is responsible on its own for procuring and maintaining the hardware and connections to public telecommunications networks required by the Business Customer. The Business Customer bears the costs for establishing and maintaining the online connection on the part of the Business Customer. payever is not liable for the security, confidentiality or integrity of the data communications carried out through communications networks of third parties. payever is also not liable for problems in data transmission caused by technical errors or configuration problems on the part of the Business Customer.
23.2
The Business Customer is responsible on its own for implementation of the payever Platform in the Business Customer’s shop system, its apps or other programs as well as the examination of the functionality in the context of a test system and the maintenance of the integration. payever especially also does not provide support for the integration of individual services of the web shop of the Business Customer.
24
Duties of the Business Customer to cooperate
24.1
To the extent this can be reasonably expected of the Business Customer, the Business Customer is required to provide reasonable cooperation. Reasonable cooperation especially includes the duties set forth in this Clause 9.
24.2
The Business Customer will make sure, without any specific request being required, that payever receives all documents and information required for the performance of the payever Services, and the Business Customer will especially transmit all relevant information for processing purchases to payever and/or the Bank or the payment service providers involved in the specific payment process. This duty to provide information also expressly relates to all information which payever needs to connect the Business Customer to the payever Platform. Services.
24.3
The Business Customer must immediately report to payever any error noticed by the Business Customer when using the payever Platform. The Business Customer must especially refrain from all acts which have the purpose of causing a problem in the payever Platform.
24.4
The Business Customer undertakes not to use the payever Platform for illegal purposes. Communication of the following content using the payever Platform is especially prohibited:
24.14
The Business Customer represents that it will not commit any infringements of copyright when using the payever Platform, for example, by impermissibly downloading copyright protected data files. Such use of the payever Platform is prohibited.
24.15
To the extent the Business Customer has offerings in connection with erotic business (e.g. night clubs) and the distribution of erotic items, introduction of partners of all kinds, games of chance or trading in weapons, although this is in a legally permissible scope, payever reserves the right not to conclude contracts with the Business Customer or, if payever learns about corresponding offerings by the Business Customer, payever reserves the right to terminate the contractual relationship upon reasonably taking into account the interests of the Business Customer.
24.16
The Business Customer is strictly responsible for the information and data provided to payever by the Business Customer not infringing provisions in the law or rights of third parties, and the Business Customer will indemnify payever against all assertions of corresponding claims by third parties, including the reasonable costs for legal defense. This applies especially also with regard to valid declarations of consent by End-Customers to the extent these declarations are necessary for collection and use of data carried out using the payever Platform, for example, for checking identity and credit standing, processing payments, subsequent transactions by payever or retained third parties.
24.17
payever reserves the right to pass on to the Business Customers requirements and terms and conditions imposed on payever by the payment services and banks that cooperate with payever. Especially the Business Customer’s general terms and conditions must meet legal requirements.
24.18
The Business Customer agrees that payever can disclose the circumstance of the cooperation between payever and the Business Customer for marketing purposes (especially in the context of presentations, press releases, advertising materials such as emails and mailings and on the payever website) and that payever can also use the name and the company logo of the Business Customer in this context (also to the extent the name and the logo might be protected by trademarks or other designations). The Business Customer can revoke this consent at any time in writing with effect for the future.
24.19
The Business Customer is prohibited from manipulating the payever Platform with any means whatsoever (scripts, programs, circumventing access restrictions).
25
Monitoring and blocking payever User Accounts
25.1
payever reserves the right to monitor User Accounts in the case of suspicion of improper use.
25.2
When using payever’s free services, payever is entitled to block and even permanently delete certain User Accounts in individual cases without advance notice and without stating reasons.
25.3
In the case of using payever Services for which there is a charge, payever has the right to issue warnings to the Business Customer or Users and/or block or permanently delete the customer account if there are specific indications that a Business Customer or a User are violating these Ts&Cs, especially the duties under Clause 9, upon weighing and considering the interests of the User and based on the severity of the violation as well as the degree of culpability.
25.4
The right to give extraordinary notice of termination is not affected.
26
Warranty
26.1
The payever Services include various services. To the extent the nature of the services can involve defects, the provisions in this Clause 11 apply.
26.2
The warranty with regard to services that are free of charge is based on the statutory provisions.
26.3
The provisions in this Clause 11.3 apply for services for which there is a charge:
27
Liability
27.1
payever only enables the technical processing of transactions between Business Customers and End-Customers as well as between Business Customers and Banks and payment service providers using the payever Platform. payever is accordingly not liable in any manner whatsoever for obligations under such contracts.
27.2
In the case of payever Services which are free of charge, payever is liable in accordance with the provisions in the law which apply for lending out items [Leihe].
27.3
In the case of services for which there is a charge, payever is liable for damages in accordance with the provisions in the law on personal injury and for damages in accordance with the German Product Liability Act [Produkthaftungsgesetz] as well as for damages which have been caused by intentional or grossly negligent or fraudulent misconduct or for damages resulting from any guarantees.
27.4
Aside from this, in the case of services for which there is a charge, payever is liable for damages resulting from culpable violation of material contractual duties, i.e. those duties, the performance of which first even makes it possible to properly perform the contract and which the Business Customer can normally rely on being complied with. The liability is limited to compensation for the typically foreseeable harm under the contract.
27.5
Any further liability of payever for damages is excluded.
27.6
To the extent the liability of payever is excluded or limited, this also applies for the personal liability of the legal representatives, senior employees and payever’s agents for purposes of performance [Erfüllungsgehilfen].
27.7
The Business Customer is required to notify payever in writing without undue delay about any damages that fall under the above provisions on liability or to have such damages recorded by payever, so that payever is informed as early as possible and can conduct any litigation of harm together with the Business Customer.
27.8
Any contributory culpability on the part of the Business Customer will be taken into account. payever is especially only liable for the recovery of data to the extent the Business Customer has taken all data back-up precautions in accordance with the state of the art in technology.
28
Copyright
28.1
The software forming the basis of the payever Platform is protected by copyright. payever is the sole holder of all intellectual property rights.
28.2
The Business Customer is granted the non-transferrable, non-exclusive right limited to the term of this Agreement to access the functionalities of the Platform through the internet for the purposes of this Agreement. The Business Customer does not receive any further rights.
29
Contract term and termination
29.1
A contract with payever for cost-free services is concluded for an indefinite period of time, starting on the date when the contract is concluded.
29.2
Services for which there is a charge always have a specific minimum contract term beginning on the date when the contract is concluded. The respective contract is automatically extended by a certain period unless the proper notice of termination is given prior to the expiration of the minimum contract term or the then current contract term. You can find details about the contract term, extensions and notice periods in the respective product description.
29.3
Both Parties can terminate cost-free payever Services at any time, and any notice period applies in the case of services for which there is a charge. The notice of termination must be in text form. Sending an email satisfies this requirement; the email must come, however, from an address of the Business Customer known to us when the notice of termination comes from the Business Customer in order to be able to clearly attribute the notice of termination to the Business Customer.
29.4
Both Parties retain the right to give notice of termination of the contract with immediate effect for just cause.
29.5
To the extent the Business Customer receives services provided by External Service Providers, those services are potentially subject to the own terms and conditions of contract which can also contain provisions on the contract term and termination of the respective contract.
30
Duty to back-up data and data protection
30.1
The Business Customer undertakes to take all required measures under data protection law.
30.2
When providing and operating the Platform as well as the related services, payever functions as a data processor within the meaning of the German Data Protection Act [Bundesdatenschutzgesetz, “BDSG”] and the General Data Protection Regulation. The Parties are concluding a corresponding data processing agreement in accordance with the requirements in the law.
30.3
payever has no duty of safe-keeping or duties to protect data integrated or imported by the Business Customer or Users that go beyond the degree necessary for using the payever Platform. The Business Customer is responsible for complying with any duties to retain records under commercial law or tax law.
31
Compensation for payever Services for which there is a charge
31.1
The prices for payever Services for which there is a charge are set forth in the price list or the product description applicable at the time the respective Contract is concluded. All prices are stated without value added tax.
31.2
payever is entitled to adjust in a specific case the amount of the compensation to be paid on an ongoing basis by the Business Customer with effect for the future by giving two months’ advance unilateral notice to the Business Customer during the term of the contract if such a price increase corresponds to a general increase in the prices of payever.
31.3
If payever makes a material increase in the price, the Business Customer has a special right of termination. The Parties assume when the contract is concluded that a substantial price increase normally exists in the case of an increase of 20 % of the compensation agreed in the corresponding specific case. payever will inform the Business Customer about such a special right of termination and state a reasonable deadline for exercising the special right of termination. If the Business Customer does not make use of its special right of termination within the deadline set for the Customer, the Business Customer’s consent to an adjustment of the compensation is deemed to have been issued and the contract will continue in accordance with the new terms and conditions. payever will inform the Business Customer about this legal consequence.
31.4
The Business Customer will be in default with payment of the agreed compensation if the payment is not received at payever within two weeks after receiving the invoice. In the case of default in payment, interest will be charged in an amount of 9 percentage points above the base interest rate of the European Central Bank. If the business customer is in default with its payments and payever must issue a reminder for the payment, payever reserves the right to charge reminder fees in the amount of EUR 2.50. The assertion of any further damages is reserved. The Business Customer retains the possibility to prove that payever did not incur any damages or incurred lower damages.
31.5
In the event of default in payment, payever reserves the right to block the customer account of the relevant Business Customer or the User until receipt of the outstanding payments.
32
Time bar
32.1
Claims of the Business Customer based on a violation of a duty that does not constitute a defect are time barred within one year beginning when the claim arises, unless intentional or grossly negligent misconduct is involved. This does not apply if the involved harm to the Business Customer consists of personal injury. Claims based on personal injury are time barred in the statutory time bar period.
32.2
Claims for correction of defects are time barred within one year after the time bar period starts to run under the law, unless there has been a fraudulent failure to disclose the defect.
33
Subsequent amendments to these Ts&Cs
33.1
payever reserves the right to amend these Ts&Cs without stating reasons. In such a situation, payever will give the Business Customer at least four weeks advance notice of such a change in text form prior to when the change takes effect. If the Business Customer does not object to the change within a period of three weeks after receipt of the notification of the change in text form, the change will become part of the contract upon expiration of the announced deadline. payever will inform the Business Customer in each notification of amendments about the above-mentioned deadline and the legal consequences of allowing it to pass without exercising the possibility to object.
33.2
If the Business Customer objects to the amendments and the amendments involve payever Services for which there is a charge, the contract will continue to run at the previous terms and conditions. However, the contract will not continue to run if it is not possible for payever to continue the contract due to material technical or organizational reasons and if payever has notified the Business Customer about this. The amendments will become part of the contract in such a case, but the Business Customer has a special right to terminate. payever will inform the Business Customer about the special right to terminate and will set a deadline of 4 weeks for the Business Customer to exercise this right. If the Business Customer does not exercise the special right to terminate within this deadline, the contract will continue at the new terms and conditions. payever will inform the Business Customer also about this legal consequence.
34
Final provisions
34.1
The Parties agree on the application of the law of the Federal Republic of Germany, except for the United Nations Convention on Contracts for International Sale of Goods (CISG) dated 11 April 1980, with regard to all legal relationships under and in connection with the contractual relationship between the Business Customer and payever.
34.2
Place of performance is at the registered office of payever.
34.3
Exclusive jurisdiction for all disputes between the Parties under and in connection with these Ts&Cs is in Hamburg.
34.4
Contractual claims against payever can only be assigned to third parties with the prior written consent of payever. The Business Customer can only exercise a set-off or a right of retention based on its own claims if its claims have been finally adjudicated or are undisputed or have been acknowledged.
34.5
If individual provisions in these Ts&Cs, including this provision, are completely or partially invalid, this does not affect the validity of the remaining provisions or parts of such provisions. Instead of the invalid or missing provisions, the respective statutory provisions apply.
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