As used in this Datatrans Payment Gateway Service Agreement (the “Agreement”), the following terms shall have the meanings set forth below:
Datatrans: Datatrans AG, Kreuzbühlstrasse 26, 8008 Zürich; Service provider of the Service.
Counterparty: Direct contract partner of Datatrans, who uses the Services of Datatrans.
Services: The Services provided by Datatrans are described on Datatrans’ website and include the Services as described for the service package chosen by the Counterparty. This also includes the Services provided by Datatrans that are described in the product documentation pages.
Services Package: The services package including the prices as chosen by the Counterparty on the Datatrans website. This includes, but is not limited to the “Get Started” package and the “Scale Now” package.
PCI DSS: Payment Card Industry (PCI) Data Security Standard requirements in its effective and applicable version.
The subject of the Agreement is the usage of Datatrans’ Payment Gateway Services.
The prices applicable on the effective date of this Agreement and any specific conditions for the services chosen by the Counterparty, are listed on Datatrans’ website.
The Counterparty warrants that it treats access data and any further information provided under this Agreement as confidential information that shall be protected against loss and unauthorized access by third parties, and that shall be used only on behalf of its customers, if needed.
The Counterparty warrants and guarantees to observe and at all times to fully comply with the PCI DSS, and the Counterparty procures that its financial service providers shall at all times observe and fully comply with the PCI DSS.
The Counterparty further covenants and warrants that it integrates the services of Datatrans according to the valid specifications of Datatrans. The Counterparty may not use or access any Datatrans Service unless they abide by all the terms in this Agreement.
Subject of these General Contract Terms are the Services in accordance with the terms of this Agreement, unless otherwise agreed.
In the event of conflicts between the main body of the Agreement and this Appendix 1 (General Contract Terms), the terms of the main body of the Agreement shall prevail. Any general business terms and conditions of the Counterparty do not form part of the Agreement and therefore are not applicable.
To conclude a contract with Datatrans the counterparty must register a user account on Datatrans’ website. Only legal entities may register and use Datatrans’ Services.
To register a Datatrans user account, the Counterparty must provide Datatrans with its business name according to the relevant commercial register, address, name and email of the representative, telephone, business identification number, the URL of its website, the nature of the business or its activities and other information that Datatrans requires. In order to verify the information provided, Datatrans may collect personal data as well. Before Datatrans has reviewed and approved all required information the Counterparty’s user account is provided on a preliminary basis. Datatrans may deactivate the user account at any time and for any reason.
The Counterparty and its representative registering the user account confirm that such representative is duly authorized to register a Datatrans user account on behalf of the Counterparty and to bind the Counterparty to this Contractual Agreement. Datatrans may require additional information to verify the authorization, including but not limited to a consent of the board or any other document deemed appropriate by Datatrans. Datatrans may demand additional information during the term of this Contractual Agreement in order to assess the risk associated with your business at its sole discretion. The failure to provide such information may result in suspension or termination of the Counterparty’s user account.
The Counterparty warrants to keep the information in its Datatrans user account current and correct at all times. Any changes affecting the Counterparty, its business activity or any other relevant information, must be promptly updated in the user account. The failure to do so may result in suspension or termination of the Counterparty’s user account.
With the registration of a Datatrans user account by clicking the button “Register”, the Counterparty gives a binding order to Datatrans to conclude a contract based on the chosen service package offered by Datatrans, acknowledges the Agreement and confirms that the Counterparty or its representative has entered all of the data required in its user account correctly.
Once the Counterparty’s offer to conclude a contract has been received, the Counterparty will be sent an automatically generated confirmation of receipt by email. This contains the service package chosen and the documents of the Agreement. A contract is not yet agreed based on this confirmation of receipt; the confirmation of receipt merely documents that Datatrans has received your order.
The Agreement is concluded once Datatrans confirms that it accepts it. Datatrans confirms the acceptance of the contract by sending the Counterparty an invoice, by confirming that the user account has been enabled for the Services (confirmation for the use of Services), or by enabling the Counterparty’s user account for the Services without confirmation.
The services provided by Datatrans are described in the then current product documentation. Datatrans is entitled to adapt the services (including software and connections, etc.) to general technological changes, the requirements of the financial service providers and PCI DSS standards.
The counterparty has obtained comprehensive information about Datatrans' various services before entering into the contract and during the term of the contract and, on that basis, chose the services it wishes to receive from Datatrans. The counterparty is therefore responsible for fulfilling the requirements of the financial services providers that are relevant to it.
Datatrans is responsible for the installation and operation of the Payment Gateway in accordance with PCI DSS security standards, as well as for its connection to the computer systems of the financial service providers identified during registration. Datatrans guarantees uninterrupted maintenance of PCI certification for the Payment Gateway. The counterparty may request proof of this certification at any time.
Datatrans guarantees that the services will be rendered in a technically correct manner in accordance with the respective applicable product documentation.
Datatrans services solely concern technical processing of data. Datatrans does not assume any collection role and does not take receipt of customer funds.
The counterparty is responsible for correct implementation of the payment solution in accordance with Datatrans’ specifications, transmission of data in accordance with specifications from Datatrans, for installing and operating its own systems and connections, for processing and general use of the data received in accordance with PCI DSS security standards, as well as for entering into, maintaining and complying with contracts with the financial service providers.
The Counterparty ensures that tokens of the Services are stored and protected against unauthorized access according to state of the art technical and organizational measures. In addition, the Counterparty uses the tokens of the Services only within its own environment. Passing on tokens outside of the Counterparty’s environment is only allowed if Datatrans’ prior written consent was obtained.
The counterparty is required to use all verification methods available to verify its submitted data which is correctly processed by Datatrans. The transaction statements provided by Datatrans are deemed approved unless they are disputed in writing within 30 days from the date of thereof.
The counterparty acknowledges that the services offered by Datatrans are technical measures to increase security and reduce the risk of abuse, but do not offer complete protection. The counterparty is responsible for selection and adjustment of these services and for compliance with the financial service providers’ security regulations.
The counterparty notes that Datatrans’ Payment Gateway is an extremely complex system, for which it is impossible to fully preclude technical faults.
Datatrans’ administration tool can display individual credit card numbers as required. The counterparty shall ensure that use of this function takes place in compliance with PCI DSS security standards and shall be liable for any abuse. Liability claims against Datatrans arising from use of this function shall be excluded in full.
Datatrans will provide support in accordance with the Services Package selected. The Payment Gateway is monitored 24x7. Help services provided as a result of actions by the counterparty in breach of its obligations will be charged separately.
The counterparty is not entitled to resell the services provided by Datatrans to third parties without a supplementary agreement in writing.
The counterparty shall supply an e-mail address to Datatrans which is accessible and appropriately monitored at all times without delay. Receipt of messages to this address shall be deemed to have been confirmed upon dispatch by Datatrans. The counterparty shall hold Datatrans harmless against all third-party claims and demands which are attributable to circumstances under the counterparty's control or to its business activities.
The counterparty is obligated to treat as strictly confidential all identifying characteristics that are used for the identification / authentication of the counterparty in connection with its use of the services provided by Datatrans. All actions and transactions executed with the identifying characteristics of the counterparty are deemed to be approved by the counterparty.
The counterparty is neither an agent nor a representative of Datatrans and is not authorized to act on behalf of Datatrans or to enter into obligations in favor of third parties for it. The counterparty must clearly distinguish between its products and services and Datatrans' products and services. Datatrans reserves the right to be consulted in respect of any reference to Payment Gateway by the counterparty.
The financial service providers are neither agents nor subcontractors of Datatrans, but independent businesses. Datatrans acts as a technical intermediary between the counterparty and the financial service providers with respect to matters concerning authorization and creditworthiness and their settlement.
The fees and submission of invoices are governed by the Services Package selected by the Counterparty.
Invoices from Datatrans are due for payment 30 days after they are issued.
The counterparty may not offset invoices from Datatrans against amounts owed to it.
The Counterparty agrees to pay the fees assessed by Datatrans to Counterparty for providing the Services (the “Fees”). These Fees will be calculated pursuant to the pricing as outlined on Datatrans’ website which is incorporated into the Agreement by reference, or pursuant to any other agreement between Counterparty and Datatrans, if any, which is intended to supersede the published pricing.
Datatrans may charge Counterparty’s credit card or other payment mechanism that Counterparty has selected and which has been confirmed by Datatrans with any Fee amounts due and payable.
Datatrans may change prices at any time, including changing free service to a paid service and charge services previously offered free of charge, provided, however, that Datatrans notifies Counterparty in advance and gives Counterparty the option to terminate its account in the event that Datatrans changes the price of a service Counterparty has subscribed to. Furthermore, Datatrans will only charge Counterparty for a service that has been previously offered free of charge if Counterparty has been notified of such charges and has agreed to pay such fees.
Counterparty agrees that if Datatrans is unable to collect the Fees owed by Counterparty for the Services through Counterparty’s account, Datatrans may take all necessary steps to collect those Fees from Counterparty and Counterparty is liable for all costs and expenses related to the collection, including collection fees, court and legal fees. In addition, Counterparty agrees that Datatrans may charge interest at a rate of 1% per month on any unpaid amounts due.
Datatrans' liability to the counterparty is, to the extent legally permissible, limited to direct damages caused by Datatrans' wilful conduct or gross negligence.
Datatrans shall not be liable for the actions or omissions of the financial service providers and/or any third parties under any circumstances.
Datatrans does not represent and warrant that the Services are free of defect and/or mistake. Services are provided on an “as is” basis with all faults. Datatrans disclaims all representations and warranties, express or implied, with view to:
(i) the Services, confidential information and any associated written materials or documentation;
(ii) its usability, condition or operation:
(iii) its merchantability;
(iv) its fitness for any particular purpose; or
(v) non-infringement of third-party intellectual property rights.
The Counterparty shall be liable to Datatrans for all damages resulting from the non-fulfillment or improper fulfillment of contractual duties and obligations by the Counterparty. In particular, Datatrans shall be entitled to charge the Counterparty any claims for damages of third parties as well as all other damages or other expenses caused by the improper compliance by the Counterparty with the present provisions. If the Counterparty calls in any third-party companies, it is liable for any damage caused by them, as if it had caused them itself.
Counterparty holds Datatrans harmless against all third party claims and demands which are attributable to circumstances under the Counterparty’s control or to its business activities, especially for claims arising out of or in connection with the Show API or the cease of Services based on non-compliance with the PCI DSS or other suspicious activity.
The parties mutually agree to maintain strict confidentiality of all confidential information of the other party. Datatrans is entitled to employ subcontractors and agents to assist it in providing services, but it must impose the same confidentiality undertaking on them.
Datatrans agrees to treat all transmitted data as confidential in relation to third parties and to comply with currently applicable provisions of data protection laws and regulations. In this context, the financial service providers designated by the counterparty are not considered third parties.
Datatrans reserves the right to amend and to supplement these General Contract Terms at any time. The Counterparty will be notified in writing, whereby email is considered as sufficient, at least thirty (30) days before entering into force of the amendments and/or supplements to these General Contract Terms. If the Counterparty does not agree with the notified amendment or supplement, it has the right to terminate the Contractual Agreement or parts of it affected by the amendment and/or supplement at the time before the amendment and/or supplement enters into force. If such termination was not made until the time the amendment and/or supplement enters into force it is deemed to be accepted by the Counterparty and becomes integral part of the Agreement between the Parties.
The Agreement becomes effective upon the date Datatrans once confirms the acceptance of the offer of the Counterparty according to Section 4 (“Conclusion of the Agreement”). It is valid for an unspecified period of time, but at least for a term of one (1) month. It continues as long as the Counterparty uses the Services or until terminated by Datatrans.
The Counterparty may terminate the Agreement as per the end of a calendar month, subject to thirty (30) days’ advance notice thereof. Datatrans may terminate this Agreement and close the account of the Counterparty at any time for any reason effective upon providing the Counterparty 15 days’ notice.
Where this contract expressly provides for it, as well as in the case of important grounds, Datatrans is entitled to terminate this Agreement without notice and with immediate effect. Such important grounds exist in particular:
(i) in the event of a breach of contract (including payment default) by the Counterparty that has been notified but not cured within thirty (30) days after notification;
(ii) if Datatrans determines in its sole discretion that the Counterparty is ineligible for the Services because of the risk associated with the Counterparty’s account, including but not limited to significant fraud risk or any other reason.
(iii) in event that tokens are passed on outside of the Counterparty’s environment without written permission of Datatrans;
(iv) if the Counterparty submits for or is declared bankrupt, becomes unable to pay its due and payable debt, requests or is granted a moratorium of payment, resolves to be or is dissolved or liquidated.
Termination does not immediately relieve the Counterparty of obligations incurred under this Contractual Agreement. Upon termination the Counterparty agrees:
(i) to stop accepting new data through the Service;
(ii) to cease the use of the Service;
(iii) to discontinue the use of and remove all Datatrans logos or other references from its website(s);
(iv) that Datatrans reserves the right to delete all information or account data stored on its servers; and
(v) that the Counterparty remains liable for any fees or any other financial obligation incurred prior to termination.
Upon termination of the Contractual Agreement, any fees already paid by the Counterparty to Datatrans to a total of less than CHF 100 will not be refunded.
The competent, ordinary courts at the seat of Datatrans shall have exclusive jurisdiction over any dispute arising out of or in connection with this agreement.