General terms and conditions of contract and business between NetDebit GmbH and Companies
Subject matter of the contract / Scope of application / Regulations / Credit card organisations / Supplementary agreement
NetDebit GmbH specification of performance
NetDebit GmbH (NetDebit) collects data on customers in their own name who are interested in visiting websites or online events of a Company via the internet portal https://www.netdebit-payment.de. NetDebit has a system through which access to online content (gatekeeping) or an electronic entrance ticket (e-ticket) for the content provided by the Company or for events implemented by it, is charged to the customer. In addition to this, NetDebit verifies customers before the provision of the access or e-tickets by means of special processes (e.g. using internal blacklists).
NetDebit also provides a service for Companies through its Partner Programme, which has the aim of increasing awareness of their content provision / events in the market and increasing the number of accesses / e-tickets provided and thereby resulting in significant increases in revenues. Within the framework of the Partner Programme, participating agents (webmasters) will advertise the events of the Companies electronically. NetDebit will handle all the technical processing of the entire Partner Programme for the Company. This shall also include the entry and payment of commission to the webmasters.
The Company is aware that NetDebit is unable to guarantee continuous availability of online access / e-tickets to customers for the offers / events of the Company on account of technical circumstances, such as possible overloading of telecommunication networks. Therefore, NetDebit's service shall be limited to the activities stated in the preceding clauses for 95% of the overall month.
Scope of the general terms and conditions of contract and business
These general terms and conditions of contract and business shall form the basis for the contractual relationship between NetDebit and the Company. This shall also apply if in individual cases a Company has contrary terms and conditions. These shall not be accepted by NetDebit, in particular where NetDebit provides its services in the knowledge of a Company?s contrary or differing terms and conditions.
Visa Europe and MasterCard regulations
The Visa Europe Operating Regulations and MasterCard Bylaws and Rules as amended shall be part of these General Terms and Conditions and referred to jointly as 'Regulations'. The current versions of both sets of Regulations are enclosed as Annex 1 to these General Terms and Conditions. The standards contained in both sets of Regulations shall equally apply to the Companies and to NetDebit itself. Should provisions of these General Terms and Conditions contradict the Regulations, the Regulations shall take precedence over these.
NetDebit shall be responsible for the Company?s card acceptance policies and procedures and may request all changes related to this from the Company that NetDebit deems necessary or appropriate in order to ensure that the Company continues to observe the pertinent regulations. In the event of a change in the pertinent regulations, NetDebit shall inform the Company. To that extent, the principles of Sections 4.4 and 9.1 shall apply.
Validity of a Supplementary Agreement between the Acquirer and NetDebit
The Company shall be obliged, as shall NetDebit, to comply with the following provisions (hereafter the term "Aggregator? refers to NetDebit, "Acquirer? refers to a payment service provider who has concluded a contractual agreement with NetDebit on the acceptance and processing of card-based payment transactions which effects the transfer of monetary amounts to the payment recipient):
- The Aggregator shall be obliged not to transfer any credit card transactions that have already been rejected by one of its own accounts, or that of a third-party trader account. Credit card transactions rejected by the Acquirer shall only be processed in compliance with the regulations of the credit card companies and, in particular, must not be sold, acquired, made available, exchanged, or made accessible to any other party than the trader's acquirer. Rejected credit card transactions must not be subjected to payment methods that are contrary to applicable law.
- The provisions of paragraph (1) shall at the same time apply to those rendering dealer services. The Aggregator shall guarantee that the service providers assigned to processing in electronic payments shall uphold these provisions.
- The Aggregator shall agree not to offer its customers on the websites, which process credit card transactions with the Acquirer in accordance with this Contract, the possibility of simultaneous registration for several services and/or memberships in one single transaction that are offered by the Aggregator, affiliated companies, or third-party enterprises ("cross-selling"). The Aggregator shall ensure that its affiliated dealers/sub-merchants do not offer cross-selling.
- The Aggregator shall make all requested information and documents available to the Acquirer regarding its organisational structure and/or affiliated companies. The Acquirer shall be authorised to stop providing services if the Aggregator fails to provide the requested information regarding the organisational structure or other matters within a reasonable period.
- The Aggregator shall be obliged to register each further website and/or affiliated dealer/sub- merchant, which processes credit card transactions with the Acquirer, prior to commencing transaction processing, and await written consent from the Acquirer's Compliance Department.
- The Aggregator shall not offer any content on its websites registered with the Acquirer that violate applicable law, do not comply with the requirements of the credit card companies, and/or are prohibited at the Acquirer's reasonable discretion; this shall particularly apply to websites with the following content:
- Presentation of bestiality;
- Presentation of rape;
- Presentation of acts of mutilation on a person or body part;
- Presentation of sexual acts with persons under the influence of drugs or hypnosis, or asleep; e) Illegal gambling;
- Illegal sale of tobacco products;
- Sale or distribution of child pornography;
- Illegal sale or distribution of pornography;
- Offer or distribution of prostitution;
- Sale of fake brand products or distribution of pirate products;
- Human trafficking and exploitation;
- Illegal sale of endangered species, or products made from endangered species;
- Offer or distribution of telephone or chat services of a sexual nature, if payment is made using JBC credit cards.
- The Aggregator shall agree not to accept transactions which
- are carried out under another company or business affiliation as (previously) notified and accepted by the Aggregator;
- relate to contractual penalties/fines or to any other form of contractual compensation or other costs which exceed the final transaction price that was notified to the customer;
- infringe relevant legal provisions;
- relate to goods which are to be resold by a customer who is not the commercial reseller;
- relate to third-party sales;
- relate to other amounts for which a customer has not obtained consent in the payment processing process of an Acquirer;
- relate to cash, traveller?s cheques or cash-equivalent payment methods; or
- relate to amounts which originate from a transaction for goods or services not performed in good faith.
The Company shall be obliged to observe all applicable regulations of the respective acquirer as amended.
The Company shall acknowledge that the credit card companies, Visa Europe and MasterCard, are the exclusive owners of their trademarks. The Company shall agree not to dispute ownership of the trademarks for any reason. The Company shall acknowledge that the credit card companies may forbid use of the trademarks at any time with immediate effect and without prior notice for any reason they see fit.
The Company shall acknowledge the credit card companies' right to enforce all provisions of the Regulations and forbids the Company or NetDebit from acting in any way that in the credit card companies' opinion shall harm them - including their reputation - or may incur threat of such harm, or may adversely affect the integrity of the payment system and/or confidentiality of their information as defined in the Regulations. The Company shall agree to take no action that may prevent or adversely affect the credit card companies' ability to exercise this right. The Company shall acknowledge that this Contract must not include provisions that contradict the Regulations.
Creation and performance of the contract
Creation of the Contract
Principles
A Contract may only be concluded with companies run by individuals over 18 years of age with a registered office in one of the following countries: Andorra, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Gibraltar, Greece, Great Britain, Ireland, Iceland, the Isle of Man, Israel, Italy, the Canary Islands, Croatia, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, Norway, Austria, Poland, Portugal, Romania, San Marino, Sweden, Switzerland, Slovakia, Slovenia, Spain, the Czech Republic, Turkey, Hungary, the Vatican State, or Cyprus.
The Company has a PID
If the Company already has an individual Partner-ID (PID), the Contract comes into effect with the Company accepting the applicability of these general terms and conditions in relation to NetDebit. These general terms and conditions can be accepted by the Company by clicking on an electronic button.
The Company does not have a PID
If the Company still does not have a PID it shall enter its own name or Company name stating the agency relationships, with postal addresses, bank details, email address, telephone number and where applicable VAT certificate (see Section 4.3) in the input screen provided by Net Debit online and transmit these to NetDebit electronically. The Company shall be obliged to provide true information.
NetDebit shall review the transmitted data and generate a PID for the Company which it shall be allocated for the purposes of performing the Contract. NetDebit shall confirm the data entry to the Company and notify it of its allocated PID.
The Contract between NetDebit and Company shall come into existence once the individual PID has been allocated to the Company.
Statements within the framework of the contractual relationship
NetDebit shall send all information regarding this Contract to the Company?s email address stated individually in the registration form, and thereafter by post to the specified postal address.
Obligations of the Company / Consequences of breaches of obligation / Monitoring powers
Obligations of the Company regarding information
Prior to using the service, the Company shall become acquainted with the General Terms and Conditions as amended and the current prices and terms which are available at www.netdebit.de. Furthermore, the Company shall be obliged to respond truthfully and without delay to any queries received from NetDebit.
Notification requirement
The Company shall provide NetDebit constantly and promptly with the current addresses of all its offices, all of the Company names it uses and a complete description of any products sold to customers and/or services provided.
Proper performance of the events
The Company shall advise the customers in an appropriate way, e.g. through the design of its website that it is a Company. Furthermore, the Company shall also actually execute the events at the extent that it notified and maintain online offers at the extent that it notified.
Compliance with the legal regulations
The Company shall be obliged to NetDebit to uphold the law with the online content / events offered to customers, and in particular refrain from infringing criminal law, copyright law, youth- protection law, and trademark law, and other identification laws and personal rights. The Company must not offer prohibited international transactions.
Consequences of a breach of the legal regulations
In the event that the Company breaches the obligations under Section 3.3 or 3.4, it is under an obligation to refrain from any continued breaches and must also compensate NetDebit for the damage caused and that is yet to be caused, and to indemnify NetDebit for any third-party claims to compensate for damage which has been caused by a breach. This shall not affect NetDebit's right to extraordinary termination of the contract.
Monitoring and control obligations
The Company must monitor the content / events offered at regular intervals, i.e. it must ensure that the obligation to comply with the legal regulations as stated in Section 3.4 is complied with at all times.
Temporary suspension of the provision of online accesses / electronic entrance tickets
NetDebit shall be entitled to refrain from providing online accesses or electronic entrance tickets on a temporary basis where there are adequate grounds to suspect that legal infringements relating to the offers / events of the Company, in particular based on an apparently justified formal warning of an alleged breach, or investigations by government authorities. The same shall apply if the website of the Company cannot be accessed, or if a customer is unable to communicate with this website for other reasons.
The Company shall be notified immediately of the suspended provision of online accesses / electronic entrance tickets stating the reasons for this and with a request to refrain from legal infringements or to provide evidence that the content is legal should this be the case. The suspension shall be lifted once suspicion has been ruled out.
Monitoring the activities of the Company
NetDebit shall constantly monitor the Company's activities and its use of trademarks referred to in these General Terms and Conditions to discourage fraudulent and other illegal acts and ensure ongoing observance of the Regulations.
All acquiring enterprises with which NetDebit cooperates on a contractual basis shall be authorised by the Company, also with legal effect in relation to NetDebit, to inspect the Company's systems or business premises on a regular or individual case basis.
Rejection of an application or exclusion of the Company
All acquiring enterprises with which NetDebit cooperates on a contractual basis, shall have the right to reject a Company's application at its own discretion at any time, or request the latter's exclusion. Grounds for rejection or request for exclusion shall include, in particular, an increase in volume of expected chargebacks, the Company's breach of Regulations, or applicable law (e.g. Sections 130 and 184 of the German Criminal Code (StGB)), insufficient funds (bad credit rating), or missing or negative information in the context of the customer's compliance evaluation. If an Acquirer rejects a Company or demands its exclusion, NetDebit shall no longer be in a position to provide the services of an Aggregator and will to that extent released from the service obligation.
Billing
Claim for commission
The Company shall receive a commission for the fee that NetDebit receives from a customer for the provision of online access or electronic tickets to the events of the Company.
Amount of the commission
The amount of the commission shall be based on the price lists published online or on an individual agreement between NetDebit and the Company.
Due date and payment of the commission
The commission shall be due for payment on the 20th day of the month following the month in which NetDebit generated the revenue with the customer (subsequent month).
NetDebit shall enter the Company's commission in the virtual account set up individually for the Company (current account). NetDebit shall pay the commission due to the Company between the 15th and 20th calendar day of the subsequent month. In the event that the Company does not meet its obligations arising from this contract or only meets these in part, and if the breach of contract is not a proportionally insignificant one, then NetDebit shall be entitled to exercise a right of retention on the due commission.
The commission shall only be paid plus the applicable value added tax (VAT) if the Company is able to prove in each tax year that it is authorised to separately state VAT (pursuant to Section 14(4) of the German Value Added Tax Law (UStG)) on invoices by providing its VAT ID no./tax ID no. and submitting a valid notification from the competent tax authority (e.g. 'Form USt 1 TN) or a tax consultant.
Services and commission for the purposes of current Section 14(2/2) of the UStG shall be settled by NetDebit by way of a credit entry. The credit shall lose its effect as an invoice if the recipient objects within a period of two weeks after entry. Following this period, any commission shall only be paid following submission of a proper invoice by the Company in accordance with Section 14(4) of the UStG.
NetDebit shall pay the Company via bank transfer to the account provided by the latter. In the event that the Company provides incorrect information concerning its bank details then the transfer costs incurred through this will be charged to the Company. Any commission which is paid via bank transfer and is less than ?10.00 in a month shall not generally be paid, but may be entered in the current account.
If the Company does not have a bank account in its country of residence into which payments may be made via SEPA transfer, NetDebit shall be entitled to make payment by cheque. Any commission to be paid by cheque and which is less than ?50.00 in a month shall not be paid, but entered in the current account. If the entered amount exceeds ?50.00, it shall be included in the next payment made by cheque to the Company. The Company will be able to view statistics concerning commissions, revenues, cancellations and credits online. NetDebit shall provide a closed area restricted to Companies for this purpose on its website www.NetDebit-payment.de.
Changes to the commission
NetDebit may change the commission agreed in the Contract with the Company following written notification of this and with a minimum period of one month before this takes effect (appointed date).
If the Company does not agree to the change, it shall have a right of termination which it may exercise without observance of the agreed notice period and effective as of the appointed date.
If the Company does not object to the changes within two weeks (receipt of the statement by NetDebit shall be decisive), or if it continues to use NetDebit's services in spite of the notification of changes, these changes shall effectively apply to the Company. This legal position will be pointed out to the Company in the advance notification in particular. If the Company expressly objects to a clause in the amended terms and conditions, NetDebit shall be entitled to terminate the contractual relationship immediately.
Processing attachments of debt
If a claim of the Company against NetDebit is attached by a third party, the Company shall be charged an administration fee of ?25.00 as flat-rate compensation. The Company may provide evidence that no damages were incurred at all or that these were significantly lower than the flat-rate fee.
Handling tax investigation enquiries
If NetDebit receives an enquiry from the tax investigation department at the Tax Office concerning the contractual relations between the Company and NetDebit, the Company shall be charged an administration fee of ?25.00 as flat-rate compensation. The Company may provide evidence that no damages were incurred at all or that these were significantly lower than the flat-rate fee.
Contract term / Notice of termination / Post-contractual obligations
Contract term
The Contract between NetDebit and the Company shall be entered into for an unlimited period.
However, the Contract shall terminate automatically and with immediate effect, if NetDebit is struck from the register of the credit card companies, Visa Europe or MasterCard, if the acquiring enterprise with which NetDebit cooperates on a contractual basis shall cease to be a member of the credit card companies, Visa Europe or MasterCard, or have no valid licence for the latter for use of one of the trademarks of the cards which the Company accepts.
Notice of termination
The Contract may be terminated by either NetDebit or the Company with a notice period of two weeks at the end of the month. The right to terminate this Contract for cause shall remain unaffected by this.
Just cause which entitles NetDebit to an extraordinary termination shall exist in the following cases in particular:
- The Company breaches essential contractual obligations, including in particular the breaches contained in sections 3.2-3.6
- The Company changes its Company address without prior notification to NetDebit
- NetDebit may terminate the Contract with the Company without notice at its own discretion, or upon the instruction of an acquiring enterprise with which NetDebit cooperates on a contractual basis, or the credit card companies, Visa Europe or MasterCard, due to conduct which NetDebit, the acquiring enterprise, or the credit card companies, Visa Europe or MasterCard, consider to be fraudulent or in any other way illegal.
The contract must be terminated as a minimum in writing.
Post-contractual obligations of the Company
Upon termination of the Contract, the Company shall be obliged to execute offer the events or offer the online content that are the subject matter of this Contract for as long as the customers shall be entitled to use this online content or visit these events based on a contract concluded with NetDebit GmbH.
Assignment/offsetting
Assignment
NetDebit shall reserve the right to assign all claims against the Company to a collection agency and to have these claims asserted by this agency.
Any assignment of the Company's claims from the contractual relationship shall require prior written consent from NetDebit. Section 354a of the German Commercial Code (HGB) shall remain unaffected.
Offset
NetDebit shall be entitled to offset all claims against the Company or to collect these using the SEPA direct debit procedure from an account communicated by the Customer, provided that the Company agrees to the SEPA direct debit procedure.
The Company may only offset its own claims where these have been determined as legitimate, undisputed, or expressly acknowledged by NetDebit.
Liability
The Company shall be entitled to legal warranty rights. Liability exemptions and restrictions from NetDebit shall be based on the following figures
No liability for third-party content and/or events
No warranty or liability shall be assumed for the content formulation of the websites or the events of the Company or for any potentially required youth protection measures.
Liability limits for own services
The access granted, or the provision of e-tickets, may be impaired for technical and operational reasons, e.g. force majeure, overloading of the telecommunications networks, maintenance and repair work, etc. NetDebit shall only be liable for these impairments where it is responsible for them. The Company shall be informed of maintenance and repair work within a reasonable period of time.
In principle NetDebit shall be liable for claims under or outside of the contract for damage caused by the Company solely in the event of wilful intent or gross negligence. Where essential contractual obligations are breached, i.e. obligations which enable the proper performance of the contract and which the Company therefore trusts and may trust will be fulfilled, in the event of default of the debtor and for cases of impossibility of providing the service for which NetDebit is responsible then NetDebit shall also be liable for any culpable breach of obligation of its employees and agents.
Limitation of liability to typically foreseeable damage
Except for cases of wilful intent/gross negligence on the part of NetDebit and the intentional/gross negligence of its legal representatives, employees or agents, the liability of NetDebit shall be limited to foreseeable damage that is typical for the contract.
Liability of legal representatives, employees or agents
Where the liability of NetDebit is excluded or limited then this shall also apply to the liability of the legal representatives, employees or agents of NetDebit.
Inapplicability of the limitation of liability in certain cases
The limitations of liability stated above shall not apply to damage from injury to life, limb or health, nor to cases of mandatory statutory regulations such as the Product Liability Act.
Data protection
The collection, storage, and processing of Company's personal data shall be governed by the Data Protection Policy for companies.
Final provisions
Amendments to the General Terms and Conditions
NetDebit shall reserve the right to amend or supplement these General Terms and Conditions in future. Considered as an amendment to these General Terms and Conditions shall be when the pertinent regulations of a credit card company or an Acquirer change and when the Company is notified accordingly. Amendments shall be implemented in accordance with the procedure described in Section 4.4. Amendments to the Terms and Conditions of Contract and Business shall also be published on the website www.netdebit-payment.de.
If the Company fails to object to the amendment of the General Terms and Conditions within two weeks (receipt of the statement at NetDebit shall be decisive), or if the Company continues the contractual relationship by using NetDebit's services, the amendment shall effectively apply to the Company. This legal position will be pointed out to the Company in the advance notification in particular.
Applicable law / place of jurisdiction
This Agreement shall be subject to substantive law of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The Amtsgericht (local court) of Düren or the Landgericht (regional court) of Aachen have shall have exclusive jurisdiction over any disputes arising from or in connection with the use of NetDebit's services or these General Terms and Conditions, provided that the Company is a merchant or has no permanent residence in Germany, or has relocated its place of residence or usual domicile abroad after these Terms and Conditions have come into effect, or the whereabouts of which are unknown at the time of the legal action being filed.
Should one or more provisions in this Contract be or become invalid, this shall not affect the validity of the remaining provisions in any other respect.
Last amended: 31/08/2020