Terms and Conditions valid for the e-commerce and m-commerce system mPAY24 provided by mPAY24 GmbH, Grüngasse 16, A-1050 Wien, entered into the commercial registry of the Vienna Commercial Court under the registration number FN 199939d, VAT number UID 50577503, data processing registry number 0832332, www.mpay24.com.
Version May 2017
1. Product Information
With its mPAY24 system, mPAY24 GmbH offers a service for the secure and easy handling of payment transactions between operators of e-commerce and m-commerce shops and their customers. mPAY24 GmbH acts as a technical service provider for the handling of payment transactions between operators of online shops, their customers and financial service providers. Payments processed with mPAY24 are done so using various existing payment methods (such as credit cards), offered and processed by authorised financial service providers.
A “client” is the operator of an online shop in which it offers its products and services to customers (the client may also be referred to as “operator of the online shop” or “business”). An “online shop” is the commercial internet offering of a client. A “financial service provider” within the meaning of these terms and conditions are financial institutions that conclude contracts regarding the acceptance of payment methods and procedures (such as credit cards, debit cards, online banking, e-wallets and the like) or the settlement of payment transactions (acquiring). “Maintenance work” within the meaning of these terms and conditions are works that contribute to the improvement or expansion of the system. An “ancillary service” within the meaning of these terms or conditions is, for example, the technical integration of mPAY24 in the e-commerce or m-commerce shop of a client.
3. Contractual Relationship
The contractual relationship between the client and mPAY24 comes into existence through the client’s order (order form) and the order acceptance by mPAY24 and is in no way dependent on any other contractual relationships of the client that are necessary or useful for the operation of the online shop. Services within the scope of the contractual relationship or the mPAY24 product are carried out exclusively on the basis of these terms and conditions or on the basis of the agreements made within the order form and are only provided for businesses. Conflicting conditions and agreements that deviate from these conditions or amend them shall not be valid unless explicitly approved by mPAY24 GmbH in writing. The order is deemed accepted once it has been expressly confirmed or fulfilled by mPAY24 GmbH; whichever is the earlier date. The client is aware that the worldwide use of the internet, as well as mobile communications equipment, may be affected by different legal systems and shall bear the resulting legal and economic risk itself.
4. Obligations and Authorisation
The client is obliged to carry out or have carried out the integration of mPAY24 in accordance with the respective valid version of the specification, the mPAY24 integration documents or other documentation provided. The client is obliged to ensure it is connected to the product mPAY24, as well as the necessary infrastructure (lines, servers etc.), at its own risk and own expense. The client is also obliged to keep the safety standards of its infrastructure state of the art and secure access to its servers, applications and entire technical infrastructure; particularly by using firewalls and anti-virus programmes. The client confirms that it has all necessary rights and authorisation for the provision of the services offered in its online shop(s) and that it will uphold them for the duration of the contract.
All services of mPAY24 GmbH are to be checked immediately by the client. The client must raise a complaint about any defects within 7 days of receiving the service of mPAY24 GmbH, otherwise the services provided will be deemed approved and acknowledged, whereby claims to guarantees, compensation because of the damage itself and claims resulting from an error concerning the freedom of the item from defects are excluded.
5. Duration and Termination of the Contract
Insofar as no other agreement has been made, the contractual relationship is generally valid for an unlimited period and has a minimum duration of 24 months from the date the contract is concluded and becomes and remains legally effective. It shall be automatically extended on equal terms (subject to an index adjustment in accordance with section 10 of these terms and conditions) for another 12 months in each case insofar as the client has not terminated the contractual relationship in writing by 6 months at the latest prior to the end of the minimum contract period of 24 months or an extension period of 12 months.
Insofar as the client has selected the offer model “prepaid transactions contingent” in the order form, it is valid for 1 year at a time and is extended for another year, provided that the client does not cancel it 6 months prior to the issue date of a new contingent and therefore terminates the contractual relationship. The minimum duration of 24 months shall hereby remain unaffected.
mPAY24 GmbH may terminate the contractual relationship at any time with a notice period of 2 months at the end of the month.
The time of receipt of the concerned written declaration in the scope of authority of the respective contractual partner is decisive for the course of the notice period and the effectiveness of a contract termination.
mPAY24 GmbH is furthermore entitled to cancel the contractual relationship with the client and to discontinue the supply of any service with immediate effect and with good reason, in particular due to (i) an infringement of an essential provision of the contract or these terms and conditions, (ii) a default in payment of due fees even after a reminder has been issued with an appropriate time limit being set or (iii) the initiation of bankruptcy proceedings regarding the assets of the client. The costs and expenses incurred for the services of mPAY24 GmbH up to this point, as well as any decommissioning costs and additional damages resulting from the early termination, including lost profit, are to be reimbursed by the client. In addition, this entitlement to early termination further applies if the client changes or passes on to third parties any services supplied by mPAY24 GmbH without written consent on the part of mPAY24 GmbH. This also applies if the client provided false information when the contract was concluded or withheld circumstances that would have kept mPAY24 GmbH from concluding the contract.
Existing obligations of the client are not affected by a termination and are to be fulfilled entirely, particularly obligations to pay any performed or commissioned services or contingents.
6. Intellectual Property Rights, Use, Ownership
All texts, images, diagrams, software as well as other content or files provided are intellectual property of mPAY24 GmbH or its cooperation partners and may not be copied, changed or sent and are only to be used within the framework of the agreement made. With the conclusion of the contract, the client only acquires a non-exclusive right to use all intellectual property rights (in particular software, files, services and information) connected to mPAY24 for the duration of and subject to the conditions of the contract. The use by the client to the extent agreed shall be exclusively for its own purposes and to its own account. Transmission (even partly) to third parties is prohibited. Through the involvement of the client in the integration or activation of mPAY24, no additional rights beyond the conditions and use set in the respective contract are granted.
The client is solely responsible for the industrial property rights used in the context of the agreement with mPAY24 GmbH and commits itself to indemnify and hold mPAY24 GmbH harmless regarding¬ any claim from a third party based on industrial property rights.
7. Information and Services of Third Parties
Insofar as third party services (such as financial service providers, internet providers etc.) or information are used by the client, a contract shall only come into existence between the client and the respective third party. mPAY24 GmbH is not subject to any legal rights or obligations in this case. The client itself is responsible for complying with the conditions as agreed in the contract between the client and a financial service provider regarding the transaction processing and use of the infrastructure of the financial service provider. The conclusion of a contract between the client and third parties is not a condition for the effective conclusion of an agreement between the client and mPAY24. mPAY24 GmbH reserves the right to refer in a suitable manner to services offered by third parties on their websites without reaching an agreement in this case or without claims being made as a result from incomplete or incorrect information. Provided that the websites of mPAY24 GmbH point to other websites (such as via hyperlink), this is only for the purpose of information and no liability of any kind will be assumed for the content of those pages.
8. Information Obligation of the Client
In the event that mPAY24 GmbH requires material from the client in order to fulfil contractual obligations, the client will be obliged to transfer the necessary information, data, files or other material in a timely manner, fully, accurately and in adequate form to mPAY24 GmbH. The client shall guarantee to mPAY24 GmbH that this material does not violate any moral standards, nor any legal or administrative restrictions and is free of third party rights and that they own the necessary rights for use and disclosure. The client is to indemnify and hold mPAY24 GmbH harmless in the case of a utilisation by a third party. Unless otherwise agreed, mPAY24 GmbH does not accept responsibility for such material and is not obliged¬ to store it or return it back to the client.
The client is obliged to make any change of delivery address as well as its email addresses known to mPAY24 GmbH. In the event that this notification is not given, declarations shall then count as delivered if they were sent to the last notified address or email address of the client. The client is solely responsible for any resulting disadvantages.
9. Services, Claim for Remuneration, Reimbursement
All fees are calculated in line with the agreements reached in the order form. Periodic compensation of mPAY24 GmbH is continually determined according to records of mPAY24 GmbH and are invoiced the month following the provision of services or earlier. All services of mPAY24 GmbH that are not explicitly settled by the agreed fee will be invoiced separately. This applies in particular to all ancillary services of mPAY24 GmbH as well as cash expenses. Offsetting with any claims against mPAY24 GmbH that the client is entitled to is excluded.
mPay24 GmbH is authorised to commission other businesses with the provision of services in this contractual relationship. mPAY24 GmbH will strive to achieve the delivery of services in the most uninterrupted manner possible. Should temporary interferences occur due to disruptions, maintenance or installation work and transfer or line problems, the client does not have any claims against mPAY24 GmbH. As far as maintenance and installation work can be foreseen, it will be announced in due time, kept as short as possible and carried out preferably at times of low system utilisation. mPAY24 GmbH will refund the partial ongoing charges to the client insofar as a malfunction in services to be provided by mPAY24 GmbH lasts demonstrably longer than 5 days and is the sole responsibility of mPAY24 GmbH. Such reimbursements are granted exclusively in the form of credit notes. The client is obliged to inform mPAY24 GmbH of any change to its IT infrastructure (such as servers, providers) in writing. mPAY24 GmbH is prepared to restore the same performance level as prior to the changes to the IT infrastructure within due course and is entitled to invoice costs incurred for this purpose. Changes or maintenance work that lead to a temporary interference of agreed services of mPAY24 GmbH do not constitute a release of the client from continued payment obligation for fees agreed in the contract.
The prices shown in the offers or order form of mPAY24 GmbH apply. Invoices are issued in EUR. Invoices of mPAY24 GmbH are normally due for payment 10 days after receipt, without any deductions. Ongoing payments are subject to an annual index adjustment on the basis of the 2015 consumer price index. mPAY24 GmbH is entitled to adjust the ongoing fees once per annum with the same percentage change in which the index number for the month of the conclusion of the contract differs from the index number stated for the month prior to that of the index adjustment. Fees do not include costs for the use of transmission equipment of the client to the mPAY24 GmbH. The observance of the agreed payment dates forms an essential condition for the provision of the service or execution of the contract by mPAY24 GmbH. Should the client default on payment, mPAY24 GmbH shall be entitled to suspend all services after written communication with the client until the full payment of the outstanding sums, including in particular the blocking of access to webpages and the blocking or changing of the passwords given to the client, irrespective of the right of mPAY24 GmbH to contract termination. All costs and damages incurred, including lost profit, are to be reimbursed by the client. These measures are permissible until the contractual conditions are met again by the client. In the case of payment default, mPAY24 GmbH is entitled to charge conventional bank interest at the rate of 5% above the statutory default interest rate. In case of any payments being overdue for at least 30 days mPAY24 GmbH is entitled to amortize all future receivables resulting from this contractual relationship with immediate effect. All costs and expenses resulting from collection of overdue payment are to be reimbursed by the client.
11. Right of Withdrawal/Decommissioning
If mPAY24 GmbH is unable to supply the client with the respective service for factual or legal reasons through no fault of its own, mPAY24 GmbH is entitled to withdraw from the contract. Costs and expenses incurred for the services of mPAY24 GmbH up to that point, as well as any decommissioning costs, are to be reimbursed by the client.
mPAY24 GmbH is entitled to discontinue the mPAY24 product and all services involved in whole or in part if the safety of the product or participating parties is endangered. This right shall also exist if the continuation of the product or its services is economically unreasonable for mPAY24 GmbH. In this case, the client will be notified in a timely manner and informed of possible alternatives.
Unless otherwise agreed or excluded in other provisions of these general terms and conditions, the liability of mPAY24 GmbH is based on accordance with the following provisions.
mPAY24 GmbH, as well as its legal representatives and vicarious agents, are only liable for typical and foreseeable damages if these are based on gross negligence or intent. Liability for slight negligence is excluded. Liability for indirect and collateral damages, as well as consequential damages, loss of profit, loss of business information or data or any other financial loss, is excluded. mPAY24 GmbH, its legal representatives and its vicarious agents are also not liable for (i) damages occurred through sabotage and unauthorised access by third parties, (ii) damages caused by defective, delayed or improper data transmission and (iii) the content of transmitted data or information transmitted via its services; and namely for neither its completeness, accuracy or topicality, nor for it being free of any third party rights or unlawful treatment by the sender. To the extent permitted by law, the liability is limited to foreseeable damage typical of the contract concerned but does not exceed 100% of the remuneration paid by the client in the past 3 months prior to the incident upon which the claim is based and for which the client pays compensation. Since mPAY24 GmbH acts as a technical intermediary in payment transactions, it cannot be held liable itself for errors that may occur during executions of payment.
In the case of an infringement of legal prohibitions or good morals, the client is liable to mPAY24 GmbH for the compensation of all direct and indirect damages incurred to mPAY24 GmbH as a result of this conduct. Insofar as mPAY24 GmbH is not expressly tasked with the technical integration and compatibility with other programmes of the client, the client is responsible for any associated deficiencies.
mPAY24 GmbH is not liable for any consequences of a delay in services that may result from incorrect, incomplete or subsequently changed details and information of the client or documents provided by the client. mPAY24 GmbH is not responsible for delays in services due to force majeure as well as incidents that complicate the service for mPAY24 GmbH or make it impossible – including, amongst others, industrial action, blockades, administrative orders, breakdown of communication networks and gateways of other operators (in particular of internet providers, financial service providers and similar businesses and organisations), even if they occur at the premises of suppliers or subcontractors of mPAY24 GmbH or their subcontractors – even for bindingly agreed deadlines and dates. These delays in services entitle mPAY24 GmbH to defer the service for the duration of the hindrance plus a reasonable start-up period.
mPAY24 GmbH guarantees that the service provided by mPAY24 GmbH is provided with adequate expertise, care and in accordance with measures customary to the industry. The guarantee is limited to reproducible defects in mPAY24 services and does not include a guarantee for software delivered for the purpose of the client in all respects to be technically and economically suitable, to run uninterruptedly and free from errors or for software mistakes to be fixed. Furthermore, excluded from this warranty are defects, interruptions or damages that can be traced back to improper operation, use or repairs executed by the client or a third party.
Guarantee claims, otherwise expiring, are to be asserted by the client (see section 2 of these terms and conditions) in writing by registered post within 7 days following the provision of services of mPAY24. The claim is to contain the exact description of the claimed defect. mPAY24 GmbH will examine the received complaint and carry out a subsequent improvement attempt if the complaint is justified and insofar as the client allows for all measures necessary for the investigation and corrective actions. In the case that the defect cannot be repaired with a subsequent improvement attempt, mPAY24 GmbH or the client are entitled to annul the contract. An entitlement to price reduction is excluded. mPAY24 GmbH does not provide a guarantee for any mediated services of third parties. For programmes that are changed subsequently by programmers of the client or third parties, as well as incorrect and incomplete use of any implementation instructions provided by mPAY24 GmbH, any guarantee from mPAY24 GmbH shall become void. Insofar as the change or addition of already existing programmes is part of the order, the guarantee shall extend to the change or addition. The guarantee for the original programme thereby does not come into effect again.
mPAY24 GmbH has the right to have mPAY24 or mPAY24 GmbH and marks of financial service providers (e.g. credit card companies) referred to on the websites provided within the scope of mPAY24 or on websites that are attributed to the payment process, via the linked logo (hyperlink/banner) in visible range, without the client being entitled to remuneration.
15. Data Protection
mPAY24 GmbH will comply with the regulations of the applicable data protection provisions. mPAY24 GmbH acknowledges its obligations for the particular protection of data in conjunction with international Payment Card Industry Data Security Standards (PCI DSS). The data transmitted by mPAY24 GmbH for the purposes of contractual performance or implementation within the scope of mPAY24 will not be passed on to third parties, unless this is required for a proper implementation of the payment process or useful for the provision of the service.
The client consents irrevocably to financial service providers that have a contractual connection with the client, to be entitled to pass on to mPAY24 GmbH, upon request, all information in connection with payment transactions, the technical execution of which is carried out by or has been provided by mPAY24 GmbH. mPAY24 GmbH is entitled to make the financial service providers aware of this.
The client is obliged to adhere to all relevant statutory provisions in connection with mPAY24, in particular the provisions of Austrian data protection law and the law against unfair competition, and to indemnify and hold mPAY24 GmbH harmless in this respect.
mPAY24 GmbH will take all appropriate and reasonable measures for the protection of the data it stores. Should a third party nevertheless succeed in unlawfully obtaining or improperly using this data, a claim for compensation of the client against mPAY24 GmbH in this regard is excluded. In the event that mPAY24 GmbH has reasonable grounds to suspect that unlawful activities or activities that jeopardise security or operations are being carried out via the network connections of the client, it shall be entitled to discontinue the provision of services to the client without prior warning and invoice any costs accrued as a result.
The client permits mPAY24 GmbH to name it publicly as a reference, including the publishing of the company logo, and also excerpts from the services provided, for advertisement purposes, PR, direct mail and internet presence. This permission is granted free of charge, and an objection must be made in writing by the client. Information, complaints and data requests must be sent to: info@mPAY24.com.
The contractual parties are obliged to treat all information they have received within the framework of the negotiation and conclusion of the contract, and such information that is identified as confidential (“Confidential Information”), strictly confidentially and not to make it accessible to third parties. Exemptions to this rule are cases in which disclosure is required by law or a supervisory or governmental authority as well as information that is made publicly known through no fault of a party. The confidentiality obligation shall apply for the duration of the agreement and for 3 years after it ends. It is forbidden to disclose confidential information to third parties without prior written permission from the respective other party. The contractual parties will use the contractual information solely for purposes for which the information was disclosed. The parties will make their employees, management and vicarious agents who receive confidential information familiar with the provisions of this confidentiality obligation and ensure that they adhere to the obligations contained. Each party will only disclose confidential information to those persons in their company who require the information for the execution of the business relationship and who are bound by confidentiality obligations that correspond to the provisions contained herein. In the case of a termination of the contract, each party must – to the extent legally permissible – hand over to the respective other party or destroy all documents, data and any other original records and any copies made.
17. Changes to the General Terms and Conditions
These general terms and conditions can be accessed online at https://www.mpay24.com/web/en/terms-conditions/. mPAY24 GmbH is entitled to change these general terms and conditions at any time without stating the reason. The changed provisions will be published two weeks before they become effective on the mPAY24 homepage at https://www.mpay24.com/web/en/terms-conditions/. Changes to these general terms and conditions shall be considered approved if the client does not raise an objection to the changed general terms and conditions within 14 days after they are published. Should the client raise an objection, mPAY24 is entitled to prematurely end the contractual relationship at the end of the month in which the objection is lodged.
18. Final Provisions
Communication within the framework of this contractual relationship and notifications will be in German or in English. In case of doubt, the German version prevails.
Should individual provisions of these general terms and conditions be invalid or unenforceable, this shall not affect the validity and binding nature of the remaining provisions and the contracts concluded pursuant to these provisions. Provisions that come as close as possible to the economic purpose of the invalid provisions shall automatically take the place of the invalid provisions. The client and mPAY24 GmbH will cooperate in order to replace the invalid provision with a valid provision that comes as close as possible to its intent and purpose. The same shall apply for any incompleteness of provisions.
mPAY24 is entitled to transfer the contract with all rights and duties to an associated company, without the separate consent of the client being required.
All legal relations between the client and mPAY24 GmbH shall be subject exclusively to Austrian law, under exclusion of the UN sale of goods law as well as of national and international conflict rules. All rights and obligations from contracts that are concluded based on these terms and conditions shall be transferred to any legal successors of the contractual parties. The place of performance is the location in which mPAY24 GmbH is based. For all disputes that may arise, the competent court for the location of mPAY24 GmbH in Vienna shall be considered the agreed place of jurisdiction.