Social Pay General Terms and Conditions
1. Service Offer
SOCIAL PAY (hereinafter – SOCIAL PAY) is a technical service provider in the field of ecommerce websites and ecommerce payments. For this purpose, SOCIAL PAY has developed a software (hereinafter – SOCIAL PAY application), which can be accessed by the contractual party (hereinafter – merchant) on the Internet to initiate credit card transactions for their ecommerce websites within our network. The important functionality of the SOCIAL PAY application is to receive the transaction data collected by or through the merchant and to forward it to the respective third party, agreed on by the parties, who processes the credit card transactions on behalf of SOCIAL PAY. The contractual relationships with the payment service providers, necessary for the processing and clearing of credit card transactions, are maintained by SOCIAL PAY. The SOCIAL PAY application can be accessed by means of an application service providing via a data processing interface established by SOCIAL PAY for this purpose (hereinafter – interface). The merchant’s data processing systems (websites) are connected to the interface by the merchant in accordance with the documentation about the SOCIAL PAY application (hereinafter – documentation). The SOCIAL PAY application, the interface, and the documentation will be referred to collectively as the SOCIAL PAY platform.
2. Subject Matter of the Agreement
2.1 Under this contract between SOCIAL PAY and the merchant, the SOCIAL PAY platform for the merchant is provided by SOCIAL PAY in accordance with the merchant contract issued by SOCIAL PAY and the SOCIAL PAY terms and conditions (hereinafter “the Agreement” or “this Agreement”). The SOCIAL PAY platform has the functionality described in the documentation. The interconnection point for the data to be transferred between the parties is the address of the interface function on the SOCIAL PAY platform in the data processing center.
2.2 The connection of the data processing systems used by the merchant to each of the Internet and the interface is not part of the services to be provided by SOCIAL PAY and falls within the sole responsibility of the merchant.
2.3 SOCIAL PAY’s service obligation is limited to the forwarding of data provided via the SOCIAL PAY platform, in unchanged form, to the respective payment service provider and forwarding of data received from the payment service provider for the merchant, in unchanged form, to the merchant. SOCIAL PAY is allowed to involve a third party for the provision of its services. SOCIAL PAY is not responsible for the accuracy and completeness of the data to be transmitted.
2.4 SOCIAL PAY is responsible for the security of credit card data within SOCIAL PAY’s area of influence. This extends to data which SOCIAL PAY stores, processes or transmits for the merchant in the course of service provision, or such data or information where the security of the merchant’s processed credit card could be interfered with.
3. Right of use
3.1 The right of use granted to the merchant by SOCIAL PAY is limited exclusively to the processing of payments on our website. However, the processing of sales requires that the merchant has a respective agreement with SOCIAL PAY, which entitle the merchant to accept payments with payment tools as granted by us in a separate agreement.
3.2 The merchant shall not,
3.2.1 reverse engineer an object code form of a part of the SOCIAL PAY application;
3.2.2 provide to third parties the rights of use to the SOCIAL PAY platform as well as to the individual elements of the SOCIAL PAY platform, whether by renting, lending or by granting sub-licenses, unless SOCIAL PAY has previously approved this explicitly in writing.
3.4 Rights other than those mentioned in these conditions are not granted. Paragraph 7 of these terms and conditions shall remain unaffected.
4. Updates / New Releases
4.1 SOCIAL PAY is entitled, at any time, even without the consent of the merchant, to make or order changes to the SOCIAL PAY platform (updates and/or new releases). These changes should be created by SOCIAL PAY in such a way as to not limit the contracted services.
4.2 The merchant shall be obligated to install immediately the provided changes to the SOCIAL PAY platform (updates and/or new releases) to guarantee the contracted services.
4.3 SOCIAL PAY will communicate major updates and/or new releases via letter or email to the merchant in due time.
5. Warranty and Liability
5.1 SOCIAL PAY warrants to the merchant that it is authorized to grant the use set forth in this agreement to the merchant. The merchant shall ensure that the SOCIAL PAY platform is used solely in accordance with this agreement. SOCIAL PAY points out that for technical reasons it is not possible to ensure continuous system availability. SOCIAL PAY is not liable for errors resulting from the provision of telecommunication and/or Internet while establishing the connection to the SOCIAL PAY platform (for example, as a result of processing overload).
5.2 The warranty of SOCIAL PAY is limited to fixing interface defects by rectification. SOCIAL PAY is liable only for the replacement of data if the merchant has ensured that it is economically viable to recover the data from data material with reasonable effort. SOCIAL PAY’s liability is excluded if damage is related to the use of interface information that is out of date or has been inadmissibly changed by the merchant as compared to the original interface version, or related to the interrupted connection to the SOCIAL PAY platform, unless the merchant can prove that the interruption is based on circumstances SOCIAL PAY is responsible for.
5.3 SOCIAL PAY’s liability is further excluded if damage is related to the interrupted connection to the SOCIAL PAY platform, unless the merchant can prove that the interruption is based on circumstances SOCIAL PAY is responsible for.
5.4 SOCIAL PAY is not liable for the accuracy and completeness of data submitted by the merchant and other third parties, and/or taken from public directories, and for data managed by it or any third party. The foregoing limitation of liability applies particularly to information with incorrect or incomplete content, auditory errors, input errors, transfer and transmission errors, identity confusion, especially in consequence of incomplete personal data, incorrect or incomplete information as a result of technical defects, and restrictions or failures of the readiness to provide information for technical reasons.
5.5 In all other cases, SOCIAL PAY is liable for intent and gross negligence in full scope. For other negligent actions, SOCIAL PAY is liable solely for
- damage, for which SOCIAL PAY is responsible due to mandatory statutory provisions, and
- damage due to the breach of material obligations, which endangers the achievement of the purpose of this agreement and/or the performance of which enables the proper implementation of this agreement and/or on which the merchant may rely regularly (cardinal obligations). In the event of a breach of cardinal obligations, SOCIAL PAY’s liability for simple negligence is limited to damages which are typical in relation to this agreement and foreseeable at the time this agreement was concluded.
5.6 SOCIAL PAY is not liable for damages that occur by force majeure, riots, war and natural events or by other circumstances that SOCIAL PAY is not responsible for (e.g. strikes, lockouts, disruptions of transit, official or administrative orders domestically and abroad).
5.7 SOCIAL PAY’s liability for loss of profit is excluded. This does not apply in the case of deliberate actions by SOCIAL PAY.
6. Compensation; Reimbursement of expenses
6.1 The merchant’s due fees and charges to be paid for SOCIAL PAY‘s services under this Agreement (hereinafter “remuneration”) arise from the “price list” unless otherwise explicitly agreed in writing to the contrary between SOCIAL PAY and the merchant in individual cases. The rates in the “Prices and Services” charges and prices are calculated in TTD plus any VAT at the statutory rate, as far as this is applicable.
6.2 For provision of services, by law or pursuant to a contractual accessory obligation or which it performs in its own interest, SOCIAL PAY is not charged with any fee, unless it is permitted by law and will be charged in accordance with the legal provisions.
6.3 Changes in charges for services, which are typically taken from the merchant in the context of the business relationship on a permanent basis (in particular for the use of the SOCIAL PAY platform), are agreed with the customer no later than two days before the proposed effective date in writing or by electronic communication with the merchant. The merchant’s agreement shall be deemed given, if he has not objected before the proposed effective date of the change. SOCIAL PAY shall inform the merchant of this de facto acceptance in its notice.
6.4 The merchant may only set off undisputed or legally established claims against claims of SOCIAL PAY. The exercise of a right of lien by the merchant is excluded.
7. Obligations of the Merchant
7.1 The merchant will refrain from obtaining, itself or through unauthorized third parties, information or data without authorization or intervening in or allowing others to intervene in programs operated by SOCIAL PAY or invading networks of SOCIAL PAY without authorization.
7.2 The merchant must ensure at any time that there are adequate funds for debit payments.
7.3 The merchant must obtain any necessary authorizations from its customers for the required transfers of information within the scope of the services offered by SOCIAL PAY. The merchant is responsible for the legally compliant collation, storage and transmission of its customers’ information (in particular personal data) to SOCIAL PAY. The merchant shall notify its customers about the handling of the information within the scope of a data privacy statement.
7.4 The merchant shall be obligated to inform its customers that its services are charged through the payment service provider. Should the customer or contract partner make claims against SOCIAL PAY arising from the billing relationship, the merchant shall indemnify SOCIAL PAY from all claims or demands internally.
7.5 The merchant shall be obligated to manage passwords and login details for the SOCIAL PAY platform in a secure and confidential manner. The merchant is not permitted to disclose such information or make it available to third parties. If passwords or login data are used by unauthorized persons, the merchant is liable for use contrary to this agreement and any damages or losses caused thereby.
7.6 The merchant shall be obligated to specify all the information requested at the time this agreement is concluded truthfully and completely and to designate a valid and accessible e-mail address to receive messages from SOCIAL PAY during the contractual relationship. This includes details of changes of the merchant master data (bank data, company form, address, contact information, company data) as well as changes of these terms and conditions. The merchant has to inform immediately of any change of e-mail address. If the merchant fails to do so, SOCIAL PAY is not responsible for any difficulties and disadvantages of the merchant.
7.7 The merchant undertakes to protect its licensing data (user id/api key) and not to pass it on to third parties.
7.8 The merchant shall be responsible for the accuracy of the information provided at the beginning or during the term of this Agreement.
8. Third-party Claims; Information Obligations; Release
8.1 The merchant shall immediately inform SOCIAL PAY of any knowledge about the possible infringement of proprietary rights. Also, SOCIAL PAY will immediately inform the merchant of any copyright infringement. If claims are made or to be expected against the merchant, SOCIAL PAY can change or replace the SOCIAL PAY platform at its cost to an extent reasonable for the merchant. If this or the obtaining of a right of use is not possible with reasonable effort, the contracting party may terminate the agreement extraordinarily in writing without any notice.
8.2 The merchant agrees to indemnify SOCIAL PAY in the internal relationship from all possible claims of third parties based on illegal or uncontractual acts of the merchant or content errors in information provided by the merchant or concerning the Internet domain used by the merchant. This applies in particular to copyright, trademark, privacy, antitrust infringements and other violations of statutory provisions or rules and regulations of institutions.
9. Adherence to legal Provisions
9.1 The merchant undertakes to strictly adhere to statutory provisions in its offers. In particular, it will not offer illegal content. In particular, SOCIAL PAY excludes certain product categories from the outset, such as and not limited to:
- Counterfeit or intellectual property infringing goods or services
- Night clubs
- Erotic bars
- Swinger clubs
- Brothels / Gentlemen’s clubs
- Sale of weapons
- Virtual or crypto currencies
- Money and legal services
- Intellectual property or proprietary rights infringement
- Counterfeit or unauthorized goods
- Regulated or illegal products or services
- Get rich quick schemes
- Multi-level Marketing
- Drug paraphernalia
- Substances designed to mimic illegal drugs
- or anything pertaining to the above categories
9.2 The merchant is further obliged not to publish any wrong or misleading information about its offer, in particular when offering paid services on the Internet, to designate them accordingly and not to offer them as “free content”. Furthermore, the merchant is obliged not to spam.
9.3 In the case of violations of the above provisions, SOCIAL PAY is allowed to cancel the contractual relationship with the merchant at any time without any notice period and to interrupt the connection to the SOCIAL PAY platform without prior notice. In the event of a breach of the above provisions, the merchant shall be liable to SOCIAL PAY for the resulting damages and has to indemnify SOCIAL PAY in the internal relationship from any claims of third parties.
10. Duties of Confidentiality and Data Protection
10.1 The merchants and SOCIAL PAY undertake to maintain both secrecy and confidentiality with respect to customer information of the other party. The parties further undertake to keep all of the data and information known as a result of the contractual business confidential, to use only in the context of the existing contract, and not to make accessible to third parties. This does not cover situations in which the respective party is legally obliged to transfer the data.
10.2 SOCIAL PAY is allowed to release the name or business name of the merchant to third parties as a reference. This applies in particular to the announcement of the offer of the merchant with the logo of the merchant and the mention of its name or company name on websites, in brochures and other documents of SOCIAL PAY. However, this does not result in any publication obligation for SOCIAL PAY. If the referencing or disclosure should not occur, the merchant must inform SOCIAL PAY in writing or by e-mail. The obligation of secrecy in 10.1 remains unaffected.
10.3 The parties further undertake to ensure data protection within the meaning of the applicable data protection regulations and to maintain, as well as to ensure the confidentiality, availability, and the correctness of the data. In particular, the parties are obliged to ensure the protection of their computer systems against unauthorized and accidental destruction, accidental loss, counterfeiting, theft, unlawful use, unauthorized change and copying of data, unauthorized access to the data and other unauthorized edits, as well as against technical failure adequately in accordance with latest technology standards.
11. Duration of the Contract
This agreement begins with the conclusion of this agreement by the parties after SOCIAL PAY has notified the merchant of his/her successful completion of the risk assessment or of the settlement of a certain payment structure which may differ from the agreed start of term of the contract. The contract has an indefinite term and can be terminated by both parties at any time with a term of one month to the end of the month. The right to extraordinary termination for important reason remains unaffected. SOCIAL PAY is entitled thereto, in particular in the event of unauthorized interventions of the merchant in the SOCIAL PAY platform and violation of the obligations referred to in paragraph 3.3. At contract termination, the merchant has to stop using the SOCIAL PAY platform immediately and return the documentation provided forthwith. Any expenses and costs arising from the merchant’s termination of the contract (e.g. data migration to a new service provider) shall be borne by the merchant. For the duration of the contract and the period afterwards, SOCIAL PAY and the partners undertake to treat all received data according to the applicable data protection provisions.
12. Contract Changes
Under these terms and conditions SOCIAL PAY is allowed for the purposes of simplifying and accelerating its business in view of the multitude of contracts with merchants to change this contract, as well as the documentation by unilateral declaration to the merchant in writing or in text form. The change becomes effective when the merchant does not object to the change declaration within 6 weeks after its receipt.
SOCIAL PAY undertakes to instruct the merchant in the event of change declaration about the special significance of the merchant’s behavior after receipt of the declaration.
13.1 The presentation of the services of SOCIAL PAY on the Internet does not represent a binding offer from SOCIAL PAY. This agreement is concluded upon its signature by both parties or, in the event of online conclusion, upon confirmation by the merchant in the provided place for acceptance of these terms and conditions and after corresponding confirmation from SOCIAL PAY.
13.2 SOCIAL PAY has the right to involve third parties in the performance of its obligations arising from this agreement. SOCIAL PAY may require that certain processing steps are carried out directly through such third parties, completely or partially. The merchant is not allowed to involve third parties in the performance of the duties under this agreement without the express written consent of SOCIAL PAY.
13.3 Supplementary agreements, changes or additions must be made in writing or in text form, in cases specified herein, to be effective.
14. Severability clause
14.1 Should one or several provisions of these general terms and conditions be or become invalid or prove to be unenforceable, this shall not affect the validity of the other provisions. In this case, the contracting parties shall replace the invalid or unenforceable provision by another provision that comes closest to the economically intended purpose. The same applies in the case of a regulatory gap.
14.2 This contract is subject to Trinidad and Tobago law. The place of performance for the services of SOCIAL PAY is the place of the registered office of SOCIAL PAY. Place of jurisdiction for all disputes arising between SOCIAL PAY and the merchant is also the registered office of SOCIAL PAY, or by choice of SOCIAL PAY the registered office of the merchant.