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MMUME AG Terms and Conditions mPOS (mPOS Terms and Conditions)

as of December 2014

 

Introduction

The following MUUME mPOS terms and conditions (hereinafter: “mPOS T&C“) are a legal agreement between you as as a businessman or businesswoman who is offering goods and services for sale and who, according to Swiss law, is not being considered a consumer (hereinafter: “you“ or “seller”) and the MUUME AG (hereinafter: “MUUME“ or “we“) concerning the use of the services provided by MUUME in the field of mPOS. This service (“service“ or “services“) comprises the processing of payments by credit cards, debit cards, and other cards (“card transactions“ or “transactions“) effected through a mobile application (“mobile app“) made available by MUUME as well as through all versions of the MUUME card readers (“terminal“). 

For a comprehensive use of our service, you will need to agree to the mPOS T&C.

These mPOS T&C are divided in three parts: Part 1 describes all requirements concerning the use of the services. Part 2 contains all requirements regarding the processing of the payment as part of these services. Part 3 is about additional legal requirements regarding the legal relationship between MUUME and the seller.

 

PART 1 – The Services

1. General

Through the use of a compatible mobile device (e.g. smartphone or tablet), the mobile app (featuring a mobile app account), and the terminal (not necessary for manually entered transactions), the services enable the seller to receive card transactions from buyers (“card holder“). MUUME charges fees for this service which will be negotiated directly with the seller.

2. Restrictions for the use of the services

2.1. To use the MUUME services, the seller must register with the mobile app and open a mobile app account.

2.2. Furthermore, the use of the services will require a compatible mobile device and an internet connection. The seller is responsible for the availability and functioning of the device and the internet connection.

2.3. By accepting these mPOS T&C, the seller agrees to the rules and regulations (“rules and regulations“) set by the credit card organisations, including – but not limited to – Visa, Mastercard and American Express (together “credit card companies“). Among other things, these rules and regulations contain information about transactions and business areas which are not allowed. MUUME reserves the right to add transactions and business areas to this list. It is in the the seller’s reponsibility to respect and maintain all of the rules and regulations and the requirements made by MUUME.

2.4. According to the rules and regulations, it can be necessary that, depending on the volume of their transactions, individual sellers will have to sign an additional agreement with one of MUUME’s acquirer services or the credit card companies themselves. Should these mPOS T&C and such an acquirer-agreement contain regulations which contradict each other, the conditions of the acquirer-agreement will always prevail over the regulations of this mPOS T&C.

2.5. Should the seller execute a transaction or try to execute a transaction judged by MUUME as being in violation with this mPOS T&C, the rules and regulations or applicable laws and/or as being potentially harmful to MUUME, other sellers of these services or service providers of MUUME (including crimes such as fraud or damage of reputation), MUUME reserves the right not to authorize this transaction, to postpone or cancel it; and/or to close or block the mobile app account and/or report the transaction to the relevant law enforcement authority; and/or to demand compensation from the seller; and/or to invoice the seller administrative charges of CHF 200 if MUUME takes one of the above-mentioned measures. MUUME’s right to compensation according to para 4 of the mPOS T&C shall remain unaffected hereby.

3. Terminal & Software

3.1. The seller can buy or rent terminals from MUUME.

3.2. As a rule, the seller can use only one terminal for each mobile app account. Upon request, MUUME can provide the seller with terminals for additional mobile app accounts and sub-accounts, which can apply additional costs.

3.3. The seller is not entitled to sell, rent, license or hand over the terminal to a third party or to allow a third party its use. The seller is also not entitled to modify the software or hardware of the terminal. The seller must only use the terminal to accept card transactions in connection with the mobile app installed.

3.4. If the terminal has not been bought, the seller will be liable to return the terminal to MUUME on request. This return will as a rule take place after the termination of the contractual relationship with the seller or in case of replacement of an existing terminal. If the seller terminates this mPOS T&C, he will have to send the terminal back at his own expense.

3.5. In order to be able to continue the use the services, the seller is obliged to install all updates of the mobile app.

4. Obligations and liabilities of the seller

4.1. The seller may effect transactions subject to this mPOS T&C only by means of terminals provided by MUUME. 

4.2. The seller may not discriminate card transactions subject to this mPOS T&C against other modes of payment in terms of price. Furthermore, he undertakes to advertise the service in a clearly visible manner at the point of sale and to respect the relevant legal rules and regulations of the credit card organisations when doing so. The seller will issue the required receipts for the card transactions to the card holders.

4.3. The seller may not initiate a card payment if the card does not meet all of the typical criteria for such a card, if there are indications that the card could be manipulated or damaged or if the validity of the card has expired. Furthermore, the seller may not initiate a card payment if there are indications that the buyer is not the card holder. In the latter case, the seller must check the buyer’s identity. A possible damage caused by the violation of these duties will have to be compensated by the seller.

4.4. Furthermore, the seller is liable to monitor the transaction process and to refund the card holder the transaction amount if the seller has received the amount by mistake.

4.5. The seller also has to immediately verify the bills, credit or reversing entries and refunds as well as all other transactions made to the seller’s account (bank account or mobile bank account) by MUUME/the acquirer. Any objections are to be raised immediately, but in no case later than twenty-five (25) working days following the receipt of the bill or booking. Not raising an objection in due time will be considered as approval. Even after the expiry, MUUME reserves the right to issue corrected bills or to correct payments. Irrespective of the legal requirements, it is the seller’s sole responsibility to save the relevant receipts of the transactions.

4.6. The seller is responsible for the correct declaration and deduction of taxes. MUUME takes no responsibility whatsoever in this context, particularly not for the accounting, reporting or declaration of taxes. 

4.7. The seller acknowledges his sole responsibility for the confidentiality of login data. It is also his responsibility that no user shall manipulate the data entry at the terminal and that there will  be no unauthorised use of the mobile app account, the terminal or any other confidential information in connection wit the use of the services. Should the seller have reasonable doubts or the knowledge to believe that his mobile app account has been used without authorization, he is liable to immediately inform MUUME and to change the login password via the relevant website. As soon as MUUME will receive such a notice, MUUME will take the necessary measures to avoid the unauthorized use of the seller’s data.

4.8. The seller is liable to respect all of the applicable rules of the “Payment Card Industry Data Security Standard“ (PCI-DSS) for the entire time of the business relationship (“PCI conformity“). Information about the PCI-DSS are availabe on the German website of the PCI Council (http://de.pcisecuritystandards.org). 

4.9. The seller shall immediately inform MUUME about any change regarding the information given by the seller when concluding the contract, including changes in the business purpose, changes in the product range, the sale or lease of the company or a change of the owner, changes of the legal form or the company itself, a change of the business address or the bank details, changes regarding the financial situation of the seller as well as changes regarding the information given by the seller according to the legislation on combating money laundering and the financing of terrorism.

4.10. The seller is completely liable to MUUME for any damage caused by the seller to MUUME, one of MUUME’s employees or users or to a third party through any deliberate or negligent violation of his duties according to the present mPOS T&C. This also includes possible lawyer fees and legal expenses, other fees, contractual penalties and fines.

MUUME has the right to immediately compensate the damage caused with an eventual deposit of the seller. If the seller does not dispose of a deposit, MUUME can compensate the damage with the seller’s incoming payments or agree on another way of payment with the seller or enforce the payment. To this purpose, MUUME is free to take any measures considered useful which particularly includes involving specialized third parties such as collection companies or to submit the enforcement of the demand to such third parties. Should MUUME involve such third parties, it has the right to disclose all information considered useful to this purpose to third parties. In such a case, MUUME will in any case make the recipients of these data liable to respect the Swiss data protection legislation when handling the data.

 

5. Obligations and liabilities of MUUME

5.1. MUUME undertakes to provide the service. According to this mPOS T&C, the liabilities of MUUME are limited to this provision. MUUME will take all reasonable measures to provide the services twenty-four (24) hours a day and seven (7) days a week all year round. However, MUUME may cease or suspend the provided services at its own discretion, normally to perform maintenance work (which will in most cases be announced before). 

5.2. Even with the utmost care, downtimes cannot be excluded. Given the current state of technology, communication and data transfer via internet cannot be guaranteed to function faultlessly or be available all of the time. Therefore, MUUME cannot guarantee the permanent and uninterrupted availability of the services and does hence exclude all liability in this regard. Furthermore, MUUME is not liable for any technical or electronic failures occurring during a transaction, in particular not for the delayed execution or receipt of payments. MUUME is also not liable for interruptions of services provided by third parties.

5.3. MUUME is only liable to the seller for damages resulting directly from the deliberate or grossly negligent violation of the present agreement. In no case is MUUME liable for lost profits or revenues or expected savings, the loss of goodwill as well as the loss or damaging of data. MUUME is also in no way liable for direct, indirect or consequential damages. Neither will MUUME be liable for any possible damage following the delay or non-processing of card transactions caused by an enquiry according to para. 2.5 of the mPOS T&C.

5.4. MUUME does not assume any guarantee or liability for any act or omission of third parties or their services as long as their use is not required by law. The same applies for faults of the hardware (e.g. the mobile devices) or the products of third parties, which are sold or integrated by MUUME as part of the services. The liability and guarantee of these third parties are subject to the relevamt agreements or the prevailing legal norms. The same applies for promotion by third parties.

 

PART 2 – Payment process

6. Transactions / funds

6.1. The seller can use the services either with the terminal provided by MUUME or by manually entering the payment details in the mobile app. 

6.2. The amount which the seller has to receive will be paid to him (“payment“) by MUUME or the acquirer as soon as MUUME or the acquirer have themselves received the amount. The agreed fees are deducted before every payment.

6.3. If the seller does effect a transaction by manually entering the card information in the mobile app or the mobile device for which the total amount exceeds the maximum amount (“maximum amount“) determined by MUUME over a rolling period of seven days, MUUME will withhold every other amount exceeding the limit for thirty (30) calendar days before transferring these amounts to the mobile app account of the seller. If there is a probability that the seller will exceed the limit, MUUME and the seller can agree on an accelerated payment schedule. Only MUUME can decide, based on criteria determined in advance, if the seller is qualified for an accelerated payment of the amount.

7. Reserves

7.1. To secure present or future claims resulting from this mPOS T&C against the seller, MUUME has the right to temporary withhold payments and build up financial reserves (“rolling reserves“). The amount of the reserves will be determined by MUUME based on the respective business risk and may be at any time adjusted by MUUME according to the situation.

7.2. If the seller does not balance an amount he owes to MUUME at all or in time, MUUME will have the right to settle this amount with the rolling reserves. If the rolling reserves do not suffice, the seller will have to pay the amount he owes immediately, but in no case later than three (3) working days after MUUME’s request to pay. The seller hereby explicitly authorizes MUUME to debit any amount owed by the seller, including the expenditures it takes to deduct this amount, from the mobile app account on which the seller receives payments or to settle such an amount with present or future payments owed by MUUME. 

8. Reverses

8.1. The amount of a transaction can be reversed from the seller’s account (bank account or mobile app account) if the transaction is contentious, or if it is not authorized or rescinded by the respective credit card company, MUUME’s processor, the card holder or a financial institution commissioned by MUUME, or if MUUME has reason to believe that the transaction has not been authorized or that it is deliberately unlawful or in violation witt this mPOS T&C (“reverse“).

8.2. Upon request from MUUME, the seller will at his own expense have to support MUUME in the examination of transactions which were effected through the services. The seller acknowledges that the omission of such a support in due time including the supply of necessary documents within ten (10) days may lead to an irrevocable reverse. MUUME reserves the right to charge a fee for the examination of reverses.

8.3. If a reverse conflict from the issuing bank or the credit card company has not been solved in favour of the seller or if the seller decides not to object to a reverse, MUUME will have the right to retract the original transaction amount plus fees from the seller and to credit the original amount to the card holder.

8.4. If MUUME discovers that the seller causes an excessive amount of reverses, MUUME will have the right to build up a reserve of an amount considered adequate by MUUME (cf. 7) or to terminate or suspend the services and to close the seller’s mobile app account.

9. Returns and refunds

9.1. If the seller initiates card transactions by using the services, he is, according to this mPOS T&C, liable to process returns and refunds according to this mPOS T&C.

9.2. Refunds in the context of return and revocability rules must on principle be effected cashless. 

9.3. MUUME withdraws the original card transaction amount plus possible taxes and fees from the seller and credits the original card transaction amount to the card holder.

9.4. In case of a replacement, a partial restitution or an incorrect transaction, the seller will always have to refund the complete amount of the original transaction first in order to initiate a completely new transaction for the sold goods and/or services or the actual amount which has to be paid.

9.5. Should the credit of the seller’s mobile app account not suffice to proceed a refund, MUUME will either debit the original transaction amount plus fees from the seller and credit the original transaction amount to the card holder or disable the possibility of a refund.

 

PART 3 – Additional legal requirements

10. Disclaimer of warranty, indemnification & no waiver

10.1. We exclude any explicit or implicit warranty or assurance. We have no control over the legal transactions underlying the card transactions and do not take any liability for these underlying legal transactions. MUUME is particularly not responsible for the successful and faultless finalization and implementation of the contract between the seller and his contract partners.

10.2. You hereby agree to indemnify and hold harmless MUUME as well as our employees, directors, agents, affiliated companies, representatives, and service partners from any claims, costs, losses and damages resulting from a violation of this mPOS T&C, an infringement or the use of our services by you, your employees or representatives or being claimed by the respective third party. This also includes lawyer fees and legal expenses, fees, contractual penalties and fines.

10.3. Should we omit to react to a violation of this mPOS T&C or other agreements from your side or to a breach of obligations from you or third parties, this shall not constitute a waiver of our right to take measures against following or similar violations.

11. Confidentiality, data policy & authorization

11.1. The seller and MUUME undertake to treat all confidential information they receive from the other party in the context of this legal relationship with confidence and particularly not to disclose them to third parties. Particularly information concerning the operational and business secrets of both parties as well as non-anonymized information about card holders are considered “confidential information“. 

11.2. The seller is liable to comply with the applicable data protection regulations and to ensure the security of the data.

11.3. Any person who identifies with legitimate means of identification (password etc.) to MUUME is considered as entitled. This also applies if this person is not the actual authorized user. Accordingly, MUUME has the right to effect such transactions without further ado. The improper use of such means of identification is at the risk of the seller as long as MUUME has not acted fraudulently or grossly negligent.

11.4. In case of enquiries, particularly those regarding transactions, the seller shall cooperate with MUUME and provide the necessary information and documents in due time.

 

 

 

12. IP rights

12.1. The seller grants MUUME the right to use the seller’s free and authorized logos, brand names, and other IP rights in the context of MUUME’s services, particularly for marketing purposes in front of present and potential future customers.

12.2. All rights to the MUUME websites and their contents (e.g. domain(s), pictures, product names, texts, logos, software) including possible intellectual property rights (copyrights, rights on the design, brands or patents) are exclusively reserved to MUUME or the licensors. As seller you only have the rights granted by this mPOS T&C and regarding the use of the services provided by MUUME. No further rights are granted to the seller by MUUME and any use beyond the afore-mentioned purpose is only allowed with the previous express and written consent of MUUME. Further seperately defined license terms apply for any software provided to the seller by MUUME in the context of the services.

13. Termination & suspension 

13.1. The legal relationship between you and MUUME can be at any time terminated from either party with a notice period of two months. Furthermore, both parties can, in the event of important reasons which make the adherence to the period of notice unacceptable to them, terminate the legal relationship without prior notice at any time. Such reasons are, among other cases, given, if the other party is unable to act, insolvent, bankrupt or in distraint or in case of a violation of applicable laws or the rules and regulations or in case of a gross violation of the mPOS T&C. 

13.2. MUUME can at any time and without reason temporarily or permanently suspend the provided services on prior notice and temporarily or permanently block your mobile app account. In the event of important reasons such as the seller’s violation of applicable laws or essential duties according to this mPOS T&C, MUUME can at any time and without prior notice temporarily or permanently suspend the services and block your mobile app account. 

13.3. If there are no grounds for the retention of the funds, after a termination MUUME will transfer the respective amount to the registered bank account. Even after a termination you will continue to be liable for all claims within the scope of this mPOS T&C.

 

14. Assignment and transfer

14.1. You are not allowed to assign or transfer the present legal relationship with MUUME as well as any rights or duties resulting from the legal relationship with MUUME without the prior written approval of MUUME. Your right to terminate this contract according to para. 13.1. shall remain unaffected hereby. 

14.2. MUUME reserves the right to commission third parties with the execution of all or single duties of MUUME according to this mPOS T&C.

15. Modifications

15.1. MUUME has the right to update or modify the services at any time and with immediate effect. 

15.2. MUUME reserves the right to modify the mPOS T&C at any time. We will send you the modified mPOS T&C via email at least two months before they enter into force and inform you in the same email about your right to object, the respective deadline, and your possibility to terminate the contract. The modified mPOS T&C shall be deemed accepted if they are not objected the day before entering into force, but in no case later than in the event of the first card transaction with the new mPOS T&C having entered into force. 

 

16. Continued validity of provisions & severability clause

16.1. All provisions, which shall continue to be valid according to their contents, will survive the termination or ending of the present legal relationship. 

16.2. If individual provisions of this mPOS T&C should proof to be invalid, ineffective or unfeasible or become invalid, ineffective or unfeasible after the conclusion of the contract, this shall not affect the validity, effectiveness and feasibility of the remaining parts of the contract. The invalid, ineffective or unfeasible provision shall be substituted by the valid, effective, and feasible provision whose effect comes closest to the economic purpose intended by the contracting parties with the invalid, ineffective or unfeasible provision. The foregoing provisions shall apply respectively in case the contract should proof to be incomplete.

17. Notifications from MUUME to you

17.1. MUUME is allowed to contact you via email, mail, phone or SMS and to notify you in the context of the present legal relationship.

Via email: We will send an email to the email address registered by you. This notification will be considered as received after 24 hours, if we do not receive a notification that the message could not be delivered. You can withdraw your consent from receiving information by electronic means by notifying MUUME. If you ask to be contacted by MUUME via mail, we will be allowed to charge a fee. 

Via mail: We will send a message to the address registered by you. This message shall be considered as received for days after having been sent. 

Via phone: We will call you or send an SMS to the mobile phone number you registered. An SMS shall be considered as received after 24 hours gilt nach 24 Stunden als zugegangen, if we do not receive a notification that the SMS could not be delivered.

17.2. You are obliged to keep your contact data up to date and your contact facilities working (email, mobile phone).

18. Notifications from you to MUUME

Notifications to MUUME in the context of the present legal relationship must be sent by mail or email to the following or the last known delivery address.

The current delivery address is:

MUUME AG, Alte Steinhauserstrasse 1, CH-6330 Cham

info@muume.com

 

 

19. Applicable law and place of jurisdiction

The legal relationship between you and MUUME shall be governed exclusively by Swiss substantive law. The place of perfomance and jurisdiction for any disputes relating to the present legal relationship is Zug.

© MUUME / December 2014