Pay3 AG's general terms and conditions (GTC)
These general terms and conditions (GTC) apply to all business relationships between Pay3 AG and its customers.
As a service, PAY3 AG provides its customers with an electronic platform (software) for processing payment transactions (cash and payment solutions) as well as all related services. Cooperation may require customers to contact other contract partners and purchase goods (e.g. cash register systems, hardware, etc.), services or licenses (e.g. software) from third parties. Unless otherwise agreed, the terms and conditions of the third-party providers apply to the goods, services or licenses purchased from third parties. All resulting costs and fees are borne by the customer.
1. Offer and acceptance
Offers from Pay3 AG are subject to change and non-binding, unless otherwise expressly agreed. Pay3 AG reserves the right to adjust agreed prices (including fixed prices) if purchase prices, transport prices, compulsory charges or other price-relevant factors change.
These terms and conditions are expressly accepted by customers, in particular when placing an order or by accepting offers from Pay3 AG. The acceptance of offers can be implied, in particular if customers accept or use services provided by Pay3 AG.
Pay3 AG reserves the right to reject orders without giving reasons.
2. Compensation of benefits
Customers have the agreed remuneration for Pay3 AG
to pay for services provided or arranged. Services that claim or demand customers without remuneration having been agreed will be charged according to effective expenditure at the respective standard Pay3 AG rates.
Pay3 AG calculates time spent in 15-minute steps. The time required is therefore always at least 15 minutes, for example for orders such as user assistance, telephone clarifications or support. Pay3 AG charges a small allowance of 3.0% for expenses that are not billed individually.
Support services are provided in accordance with the respective service subscriptions offered by Pay3AG. The individual services are described in Pay3 AG's Service Level Agreement (SLA).
3. Obligations of cooperation and support
Customers ensure that they participate in the provision of services to the extent necessary and support Pay3 AG to the extent required. Cooperation and support are provided at the expense of customers. Pay3 AG determines the extent to which the contribution and support is required. The obligations to cooperate and support are essential obligations of customers.
In particular, customers are required to actively and timely support Pay3 AG, its employees and the third parties it engages in providing services in every reasonable way, to participate in carrying out the necessary provision and preparation actions (including the procurement of all necessary permits and rights) and to grant the necessary access to their premises and resources.
In particular, customers are also required to provide in good time all data, documents and other information that could be important for the provision of services by Pay3 AG. Data in electronic form, which is further processed, must be transferred to Pay3 AG in a common electronic, in particular machine-readable format.
Customers commit themselves to granting Pay3 AG access to all transactions. The data is used exclusively for the contractually agreed purpose. Pay3 AG treats all data provided to it strictly confidentially. Reference is made below to section 11. “Data protection/confidentiality”.
Consequences that arise because customers comply with their obligations to cooperate and support
Failure or failure to comply properly must be borne by the relevant customers, for example additional costs or delays. Customers must compensate Pay3 AG for any additional expenses in accordance with the applicable standard approaches, unless Pay3 AG is solely responsible for this.
4. Transfer of risk/ right of return
Any risk, in particular the risk of accidental damage or accidental loss of delivery goods, is transferred to the customer when delivered to the customer, when picked up by the customer or third party and when they are handed over to a freight forwarder.
Goods can be returned to Pay3 AG within 10 days of receipt or receipt with the delivery note or invoice at the customer's expense. Goods, technical articles, goods that have already been used as well as subscriptions, developments, licenses and interfaces are excluded. The goods must be returned in their original packaging, undamaged and complete.
5. Prices and shipping costs
All prices are in Swiss francs (CHF). All prices are net, i.e. excluding exclusive disposal fees, value added tax and any other compulsory charges, transport costs and packaging and shipping costs.
Delivery takes place exclusively in Switzerland and the Principality of Liechtenstein. The packaging costs are at least CHF 12.00.
PAY3 AG makes every effort to meet agreed delivery dates, but these are not guaranteed. If delivery is not possible for reasons not attributable to Pay3 AG, the costs for the new delivery are transferred in full to the customer.
The settlement of customer claims with Pay3 AG claims requires the express consent of Pay3 AG.
6. Payments/Due Date/Delay
Compensation and other payments are made in accordance with the invoicing by
Pay3ag due. The payment period is 20 days from date of invoice.
Customers are automatically in default when the payment period expires unused and without a payment reminder. Pay3 AG may charge the following lump sum for payment reminders: CHF 10.00 for the first payment reminder, CHF 20.00 for the second and last payment reminder. Pay3 AG reserves the right to charge a default interest of 5% from the due date.
If the customer is in default of acceptance of the goods or payment of the same, Pay3 AG is free to either maintain the performance of the contract, in which case the customer owes compensation for the delay and 5% default interest or cancellation of the contract.
In the case of subscriptions, licenses and other service contracts, Pay3 AG has the right, after a prior reminder, to discontinue its service until payment has been made. The costs of restoring willingness to perform are borne by the contractual partner.
Goods remain the property of Pay3 AG until full payment has been made. PAY3 AG is entitled to secure ownership of items by entering the retention of ownership register at the expense of customers. Pay3 AG and third-party suppliers remain owners of all work results and intellectual property rights until all outstanding claims have been paid in full in compliance with the payment conditions.
Pay3 AG obligations are not considered expiry dates. Deadlines are considered met with the provision of services. If Pay3 AG is in default, customers must grant a reasonable period of grace in writing twice.
7. Guarantee/warranty
The customer must report material or manufacturing defects that occur within 12 months of delivery to Pay3 AG in writing within 5 days of their discovery.
Defective goods will be repaired or replaced at Pay3 AG's discretion. Replaced parts and goods become the property of Pay3 AG. In warranty cases where any faults cannot be eliminated or parts cannot be replaced, Pay3 AG grants the customer a price reduction at its own discretion. Customer claims for indirect and subsequent damages, such as lost profit, third-party claims, loss of data, etc. are excluded. All further claims made by customers are excluded. In particular, customers cannot withdraw from the contract or demand compensation for subsequent damage (compensation claims).
In addition, it is expressly agreed otherwise in the corresponding service subscription, Pay3 AG provides the warranty services on its own premises (“bring-in guarantee”). Accommodation and travel expenses, transportation and packaging costs as well as dismantling and assembly costs are borne by customers. The recognition or elimination of warranty claims does not interrupt any warranty or limitation periods.
The warranty does not apply to defects resulting from faulty installation, improper operation, force majeure or if the customer modifies hardware or software themselves or has it changed by third parties. The guarantee also does not apply if customers fail to comply with their obligations to cooperate and support.
Finally, the warranty does not apply to services and goods from third parties. For
Services and goods from third parties are subject to their terms and conditions and other provisions. In this case, Pay3 AG assigns all warranty and warranty claims from such third parties to the relevant customer. Pay3 AG supports customers in requesting such claims at their expense.
Pay3 AG's additional expenses in connection with services and goods from third parties, for example the new installation or reprogramming of devices, are borne by the relevant customers, unless and insofar as such additional expenses are not borne by the affected third parties.
The warranty replaces all legal warranty and warranty provisions. Guarantee terms agreed in individual sales contracts or in other contracts have priority.
8. Liability
PAY3 AG is only liable for direct damage caused by grossly negligent or intentional acts. Any further liability for direct damage, in particular slight and moderate negligence, is expressly and completely excluded. Any liability for indirect and subsequent damage caused by defects, for claims by any third parties, for reputational damage and for lack of success or loss of profit is expressly and in full excluded. Any liability for assistants is excluded.
This liability is limited to CHF 50,000.00 per damage event and for financial losses to CHF 5,000.00 per event.
PAY3 AG is not liable for damage in connection with data backup. In particular, any liability for damage caused by transmission errors, technical defects, interruptions, disruptions, illegal interference with telecommunications equipment, misuse by customer employees or network overloading is excluded. Customers are solely and exclusively responsible for backing up and restoring their data, unless such data backup is expressly agreed upon. Offers such as “Active Monitoring” from Pay3 AG are used exclusively for supporting and non-binding control of data backup.
Pay3 AG is also not liable if the obligations arising from these terms and conditions are only partially or partially fulfilled due to force majeure. Force majeure includes in particular attacks and explosions, uprisings, wars and unrest, fires and lightning strikes, floods and other natural disasters, epidemics and pandemics, IT security incidents, nuclear accidents, the restriction or interruption of the power supply and
telecommunications services, strikes, magnetic storms, unforeseen
Weather effects and official bans. Force majeure is
Explicitly, including the COVID-19 pandemic. If and insofar as Pay3 AG is unable to meet its contractual obligations due to force majeure, the fulfilment of the contract, for example agreed deadlines, will be postponed accordingly without Pay3 AG being liable to the customer.
Customers are expressly and fully liable to Pay3 AG and any third parties for all direct and indirect costs and for damages arising in connection with offers, services and goods from Pay3 AG and any third parties. This liability applies regardless of fault and also includes indemnification for claims by any third parties. Affecting customers indemnify Pay3 AG from any claims made by third parties and agree to bear all costs, including full legal and court costs, as well as direct and indirect damages in accordance with Pay3 AG's statement.
9. Rights to software and other intangible property rights
All rights to software are and remain the property of the respective providers, manufacturers and suppliers, unless rights are expressly granted. Customers acknowledge that providers, manufacturers and suppliers may withdraw the license in the event of actual or suspected violations of license and terms of use and may prohibit the use of the software, including in the form of hardware.
10. Data protection/confidentiality
PAY3 AG and customers are committed to complying with the applicable legal provisions on data protection. Customers agree to inform Pay3 AG if they believe that applicable legal provisions on data protection have not been complied with.
PAY3 AG and customers are committed to keeping secret all information that is not generally known to them in connection with their business relationships or otherwise become aware of. The obligation to maintain confidentiality exists for an unlimited period of time even after the business relationship between PAY3 AG and its customers has ended.
Customers are aware that Pay3 AG employees may also have access to confidential data and sensitive information as part of their work. Employees are subject to professional confidentiality and other legal confidentiality obligations as well as corresponding contractual obligations vis-à-vis Pay3 AG. These obligations exist for an unlimited period of time even after the termination of the employment of such employees for Pay3 AG.
Customers acknowledge that Pay3 AG, when working with other providers, can transfer this data to the required extent. With regard to the further processing of this data by the other providers, reference is expressly made to their terms and conditions.
11. Contract duration
Contracts with Pay3 AG come into force when they are signed or when accepted or ordered by customers. If contracts are not limited in time, they are considered to have been concluded for an indefinite period of time in each case with regard to the continuous benefits contained therein.
Contracts can be terminated in writing at the end of the contract year with a notice period of 3 months, unless otherwise expressly agreed. In the case of contracts with an agreed minimum term, termination is possible at the earliest upon expiry of the minimum term. Contracts relating to services provided by third parties or brokered by Pay3 AG end automatically when the third parties no longer provide the relevant services.
If the order is terminated early by customers, Pay3 AG will calculate the effective time required, regardless of the result achieved. If orders with a planned or agreed volume of work are completed early by customers, 50% of the planned or agreed time or estimated time required will be charged. The postponement of orders is equivalent to termination.
The right to extraordinary termination for important reasons remains at any time
Reservations. Contract changes are only valid if they have been expressly confirmed by Pay3 AG.
12. fiduciary duties
Pay3 AG and customers must refrain from doing everything that
could impair the other party's ability to act and competence.
As part of these fiduciary obligations, it is particularly prohibited to directly or indirectly poach employees from the other party. Recruiting also includes directly or indirectly encouraging employees to apply independently or employing them as employees or binding them directly or indirectly to me through another form of cooperation, for example by means of an assignment or work contract.
If this prohibition of solicitation is violated, the party breaching the contract owes a contractual penalty in each individual case in the amount of a gross annual salary of the recruited employee, but at least CHF 250,000.00. We reserve the right to claim further damages, in particular the recruitment and training costs arising from recruitment. Payment of the contractual penalty does not release you from compliance with the prohibition of solicitation.
13. communication
PAY3 AG AG communicates with its customers via email. Customers acknowledge that the data is sent unencrypted. This means that it is not ruled out that information may be viewed and/or changed by third parties. Customers also recognize that communication via e-mail may result in transmission errors, interruptions and disruptions.
14. Final provisions
The place of performance for all customer obligations is the registered office of Pay3 AG, unless otherwise expressly agreed.
These terms and conditions apply in the version valid at the time of the respective order confirmation. Pay3 AG reserves the right to change these terms and conditions at any time. With the publication of the amended terms and conditions, all previous terms and conditions lose their validity.
Should individual provisions of these terms and conditions or other agreements with the customer prove to be void or ineffective, this shall not affect the validity of these terms and conditions or other contracts as a whole. In such a case, the parties will adapt the relevant provisions in such a way that the purpose of the void or ineffective provisions is achieved as far as possible.
These terms and conditions are subject exclusively to Swiss law, excluding
United Nations Convention on International Treaties
Purchase of goods. The place of jurisdiction is the registered office of Pay3 AG. Pay3 AG is alternatively entitled to sue customers at their registered office/place of residence.