General Terms and Conditions
for the White Label XPAY Credit Card Programme

 

Status: 3rd July 2018

 

General, Scope of application

(1) These General Terms and Conditions („GTC“) govern the Agreement (the “Agreement“) between us, XPAY Solutions GmbH, Stefan-George-Ring 2, 81929 Munich, manager Marcus Sahanek, HRB Munich 225853, Telephone 089/124148220, Telefax 089/461344228,

E-Mail info@xpay-group.com (“XPAY“, “we“, “us“) and you (“Buyer”, „you“, „your“) as buyer of the White Label XPAY CARD Prepaid Card Programmes (“XPAY CARD Programme” and all issued “XPAY CARD“ prepaid cards under the XPAY CARD Programme) concerning the agreement on a White Label Corporate Prepaid Cards programme.

We or our affiliated companies or subcontractors offer you the possibility, to provide your customers with the online Mastercard® prepaid cards with your company’s brand, that the customer then orders and receives, and within the framework of use of the prepaid cards, to participate in the Loyalty Programme of all companies, which have ordered an XPAY CARD programme („third party customer“).

 

(2) With the XPAY CARD programme, XPAY offers you a comprehensive and highly configurable prepaid card system suitable to be used as a customer loyalty and marketing instrument, or as a profitable product.
In the course of your order you can determine the individualisation of the XPAY Card as well as the costs of an XPAY CARD for your customers.

 

(3) Your customers (the “ customers“) can register themselves for the XPAY CARD on a landing page, designed according to their own specifications (the “Landing page“) and they can order the XPAY CARD there at the price per XPAY CARD that you defined in the context of the purchase order of the XPAY CARD programme. The landing page, as well as the issuance of the XPAY CARD and the Agreement in this context will be operated or concluded by affiliated companies of XPAY or subcontractors of XPAY (the  “Provider“).

 

(4) The XPAY CARD will be distributed by the provider. The card will be issued by the Wirecard Card Solutions Ltd. („WDCS“ or the „issuer“), a company under English law with registered seat in 3rd Floor, Grainger Chambers, 3-5 Hood Street, Newcastle upon Tyne, NE1 6JQ, Great Britain, with the English company register (Companies House) under Register Number 07875693. WDCS shall be under the supervision of the English Financial Conduct Authority and holds an authorisation as the electronic money institution in accordance with the English law (FCA the company’s reference  number 900051). This authorisation performs the              WDCS on behalf of so-called European passports for the Financial Services in the European Economic Area (EEA). The HD CARD SERVICES Ltd., registered address: 33 Cavendish Square, W1G 0PW, London, United Kingdom („HDCS“) is responsible for the so-called Programme Manager of the technical administration in the card business on the part of WDCS. When the customer has placed a purchase order for XPAY CARD, this does not constitute a contractual relationship with regard to the customer, between the buyer and the customer. Rather there will be agreements signed between customers and the provider and the issuer as well.

 

(5) In connection with the order of the XPAY CARD the customers agree to the use of the banking software XPAY BENTO (“XPAY BENTO“) with which the customers can manage their XPAY CARD, they can load new credit on their XPAY CARD as well as they can activate or access (the “XPAY BENTO Account“) their advantages from the Loyalty Programme (see point 7). 

 

(6) These GTC can be consulted at any time under www.xpaycard.de.

You can always request a copy of these GTC.

 

  1. Conclusion of the Agreement

 

(1) The presentation and advertisement for the XPAY CARD programmes on our URL www.xpaycard.de (the “Webpage“) shall not constitute a binding quotation concerning an XPAY card programme in relation to signing an Agreement between you and us.

 

(2) By sending your order on our webpage, by clicking the button „order with obligation to pay“, you submit a legally binding order. You are bound by the order for a period of two (2) calendar weeks after placing the order.

 

(3) We will send you immediately by e-mail the confirmation of receipt of your sent order on our website. Such an e-mail shall not constitute a binding acceptance of the order, unless therein, besides the confirmation of receipt, the acceptance is also declared.

 

(4) An Agreement only comes into effect when we have confirmed your order by e-mail through an acceptance declaration.

 

(5) If there are reasons that argue against the closure of an Agreement, we will immediately inform the buyer and we will immediately refund the already received amount. In that case an Agreement is not concluded.

 

  1. XPAY Services

 

(1) XPAY or XPAY through the XPAY affiliated companies or subcontractors, offer you, in the frame of the XPAY CARD programme, according to the provisions of the agreement, the possibility to provide your customers with branded prepaid cards that they can order and obtain on the landing page (see point 1 (3)) with their company’s design (front side entirely individualized according to the delivered image files, see point 6 (3)). For this service XPAY charges you a one-time fee (see point 4 (1).

 

(2) Additionally, for each XPAY CARD, depending on the configuration  (see point 4 (2)) a one-time payment may be incurred.

 

(3) After the customers place the order for XPAY CARD, XPAY places the XPAY CARD at the disposal of customers through an XPAY-company the banking software XPAY BENTO, with which the customers can manage the XPAY CARD, can load new credit on their XPAY CARD, and they can activate or access their advantages from the Loyalty Programme as well.

In this regard, only the customer can benefit of this service.

 

(4) Furtehremore XPAY will set up and manage the Loyalty Programme (point 7) in the future.

 

  1. Remuneration and payment

 

(1) The buyer pays for the XPAY services, in connection with the  XPAY CARD programme during the ordering process (point 2(2)), a single payment of the amount indicated during the ordering process on the website and in the price list from Annex 1 to these GTC (the “ price list“) plus value added tax, free of any costs and free of bank charges to the following bank account of XPAY:

XPAY Solutions GmbH, Donner und Reuschel AG, IBAN DE93 2003 0300 0062 1170 01, BIC CHDBDEHHXXX.

Payment is due with the order. It is the return for the rendered services according to the point 3 (1). The Loyalty Programme according to point 7 or the XPAY BENTO,  that is placed at the disposal of the customers, are not returns for the one-time payment.

 

(2) The costs to be invoiced by default to you or to the customer for each XPAY CARD can be found in the price list (“the initial start-up costs XPAY CARD“). You can determine in the ordering process the differing costs for the XPAY CARD that will be invoiced to the customer (the “CARD COSTS“).

Provided that the CARD costs are higher than the initial start-up costs, then you will be credited with 70 % of the difference. The remaining 30 % belong to XPAY as compensation for expenses and also for costs and taxes.                         

In case the CARD costs are lower than the XPAY Card initial start-up costs, you have to transfer the difference per card plus value added tax to XPAY. Any additional costs of XPAY are included in this case.

On delivery of an XPAY CARD to the customers, there will be aninvoicing process or credit note process according to this paragraph    (2).

The invoicing process or credit note process will follow according to our choice after each card issuance, or according to our choice gathered monthly or after a certain number of ordered XPAY CARDS, where credit notes follow in any case only after receipt of payment from customer.

Additional invoices on our part are payable within ten (10) bank working days, free of any costs and free of bank charges to the bank account of XPAY according to point 4 (1).

 

(3) Your CARD target costs have to be reasonable in relation to your rendered services of XPAY CARD in conjunction to your added additional services and are finally subject to the approval process on the part of WDCS.

The buyer has no contractual right to insist on a pricing system of the CARD costs contrary to the requirements of WDCS. If the CARD costs are rejected by WDCS, XPAY can reject such an order according to point 2 (4), or if he has already taken it, then he can withdraw from the agreement. 

XPAY must return the already received services in case of a withdrawal according to this paragraph (3).

 

(4) “Bank working days” are such days on which the banks in Munich, Germany are open to the public.

 

  1. Time of performance by XPAY

 

XPAY will order the XPAY CARD programme, consequently the landing page and the possibility for customers to order XPAY CARDs on this landing page and also access for these customers to XPAY BENTO within normally 20 bank working days, after the following requirements are fulfilled:

  • Payment according to point 4 (1) is on the account of XPAY
  • The buyer has completely fulfilled his obligations to cooperate according to point 6.

If these 20 bank working days are exceeded, this does not lead to a delay for XPAY.

Moreover, after the expiration of the 20 bank working days, the buyer must set a further reasonable deadline for fulfilment. 

  

  1. The buyer’s obligations to cooperate and to perform

 

(1) During the ordering process, the buyer provides XPAY with necessary contact details and also with all necessary information that XPAY needs within the scope of the legal obligations and for establishment of the buyer‘s company and the right of representation.

The buyer accepts that XPAY share this data from the ordering process with service providers, Mastercard®, WDCS and HDCS and with all affiliated companies of XPAY pursuant to section 15 et seq of the German Stock Corporation (these companies together with XPAY the “XPAY Companies“) for the execution of this Agreement.

 

(2) The buyer finally, when ordering the XPAY CARD programme

according to point 3 (2), selects the price per XPAY CARD for each customer. In order to do this the buyer is forwarded to a further webpage of XPAY.

 

(3) For this the buyer will be required to upload the landing page and the used logo of the buyer, according to the required provisions mentioned in the Appendix 2 and a buyer’s graphic as background for XPAY CARD and the landing page with their requirements (the logo and the graphic of the buyer will be named here “Buyer Brand”), that XPAY needs for the design of the XPAY CARD and also of the landing page.

The buyer receives via XPAY, within a reasonable period of time, a view of the draft design of the XPAY CARD and the landing page, necessary for the implementation of the design, after the end of the ordering process.

The buyer has the possibility to communicate one (1) time changes to XPAY within a period of two (2) months after receipt of the first design, that XPAY will implement and the amended drafts will be offered to the buyer.

Each desire for modification of the design on the part of the buyer

must be received by XPAY within ten (10) bank working days. 

 

(4) If the buyer, except this one (1) correction within the first two (2) months after receipt of the first designs –  both timewise as well as concerning the number of changes – requires further changes of the design of the XPAY CARD and the landing page (“Change Requests“), the changes will be invoiced to the buyer, according to the price list applicable at the moment of the change requests and which can be consulted on the website.

The buyer must confirm the design by e-mail.

Change Requests can be done only for XPAY CARDs which have not been ordered yet or for XPAY CARDs issued for a limited period of time.

 

 (5) XPAY can always reject the buyer’s brand, if this contains illegal, offensive or such contents, which may have negative influences on the reputation or businesses of the XPAY companies and / or if the possibility exists that by using it the XPAY companies may be subjected to third party claims.

XPAY can reject the acceptance of such an order or if the agreement has already been concluded, it can cancel the agreement at any time.

 

(6) If XPAY accept the buyer’s offer nevertheless in accordance with point 2 (4), although the buyer’s brand has been rejected, then the buyer must offer a different, acceptable buyer’s brand.

 

(7) The buyer instructs XPAY to apply the buyer’s brand on the XPAY CARDs and to design the landing page with the buyer’s brand.

In this context the buyer grants herewith the XPAY companies a free of charge and transferable right of use without any restriction on location and time, a simple right of use of the buyer’s brand, especially of storing the buyer’s brand on the server of XPAY or of XPAY companies and their publication for advertising purposes and the making them available to the public, the editing and reproduction, where necessary, in connection with the XPAY CARD Programme, including the landing page, the production of XPAY Cards, of XPAY BENTO and of Loyalty Programme.

The right of use shall be valid for the duration of XPAY Card Programme.

 

(8) In case where the XPAY companies, due to the right of use of the buyer’s brand, are used by a third party, the buyer exempts the XPAY companies from the damages, liabilities and costs which might arise from this context. 

 

(9) If XPAY cannot fulfil his services, due to a partial or faulty performance of buyer’s obligations to cooperate, according to point 6 or according to this agreement, the buyer’s obligation to pay remains in effect in accordance with 4 (1), because the services of XPAY, at this moment, have been predominantly provided.

This will also apply if the results of the verification of the buyer indicate that an agreement is not allowed with the buyer’s company or with a person acting on his behalf due to the obvious reasons in the buyer’s company or the person acting on his behalf

 

  1. Loyalty Programme

 

In connection with the XPAY CARD Programme, XPAY will establish a Loyalty Programme, in which the buyer and all third parties could participate.

The Loyalty Programme consists of the fact that the buyer and the third party grant advantages at their own’s discretion, following the payment with an XPAY CARD.

The Loyalty Programme and its contractual terms will be additionally agreed at its introduction between you and XPAY.

After the introduction of the Loyalty Programme, the customer receives the possibility to participate.

After its introduction, the concrete functioning of the Loyalty Programme will be permanently described on the actual landing page.

By participating in the Loyalty Programme, the buyer is subject to the conditions in the applicable current version.

Additional costs may arise for the buyer from the participation.

 

  1. Copyrights

 

(1) The copyright and the exclusive usage right for published, provided objects by XPAY (internet pages, scripts, programmes, graphics) remains the property of XPAY.

 

(2) By entering into the Agreement of use, the buyer receives a simple right, that is unrestricted in space, to use the landing page according to the agreed scope in the Agreement, exclusively for own purposes, for the duration of the agreement.

Further rights will not be granted, especially for the duplication beyond what is necessary for the contractual use.

Any rights of section 69 d paragraph 2 and 3, 69 e UrhG remain unaffected.

 

  1. Liability

 

(1) For damages to other legal goods than life, limb or health, XPAY shall not be liable in relation to the buyer, as long as the damages are not committed intentionally or by gross negligence on the part of XPAY, one of its legal representatives or one of its vicarious agents and the behaviour is no breach of the contractual obligations.

The essential contractual obligations are such obligations, the fulfilment of which enables the proper fulfilment of the Agreement in the first place and on the fulfilment of which the buyer may regularly rely.

The liability for a breach of such an essential contractual obligation is limited to the contractual damages, whose occurrence XPAY could expect due to the circumstances known upon conclusion of the Agreement.

The exclusions and limitations of liability set forth above do not apply where XPAY has explicitly assumed liability or in case of claims due to absence of assured features or as far as claims under product liability law are not affected. 

 

(2) XPAY shall not be liable to the buyer for the success of XPAY CARD,

nor for any claims from customer in connection with the XPAY CARD Programme.

 

(3) The limits to liability above, by analogy, also apply in favour of the vicarious agents of XPAY.

 

(4) If there is a possibility to forward the data base and websites etc. to third party through the website of XPAY or the landing page, for instance through the creation of links or hyperlinks, then XPAY shall not be liable for the accessibility, condition or security of these databases or services, nor for the content of them.

Especially XPAY shall not be liable for the legality, correctness, accuracy of the facts, completeness, actuality etc.

 

(5) In any case the buyer is also obligated to engage in damage limitation. This includes the timely notification of damages in the context of minimizing further damage.

 

  1. Changes of these GTC

 

(1) We can always make changes to these GTC, with inclusion of further conditions. You will be notified in writing by E-mail of the changes two months before taking effect.

 

(2)  In the case of amendments, the new version of GTC can be consulted under www.xpaycard.de beginning on the day on which this regulation applies.

 

(3) Your acceptance of the changes shall be deemed granted, unless you give us no objection statement before the effective day.

 

(4) In the case of your objection statement, this agreement shall terminate with immediate effect.

 

  1. Agreement termination

 

(1) The Agreement which is based on these GTC is concluded for an indefinite period of time.

XPAY may terminate this Agreement at the earliest after the expiration of the twelve (12) months, beginning with the one when the landing page has been available and after the expiration of this minimum period with a period of notice of three (3) months at the end of each quarter.

A possible termination of this Agreement has no effects on the already ordered and / or issued XPAY CARDs.

The buyer has no right to demand that these should be claimed back.

The XPAY CARDs are subject only to the agreement that the customer has reached with one or more XPAY companies.

 

(2) The right to extraordinary termination for important reason remains unaffected.

 

(3) You may terminate this Agreement at any time by sending an e-mail

to the address kuendigung@xpay-group.com.

 

(4) In the event of a termination, for whatever reason, XPAY shall not be responsible for refunding the remuneration in accordance with point 4 (1). 

 

  1. Final provisions

 

(1) We shall be entitled to transfer our contractual rights and duties to third parties or to externalise individual services to a third party.

It is not allowed to transfer your contractual rights and duties to third parties.

 

(2) Should individual terms of these GTC or of this agreement, partially or wholly be or become inoperative, this will not affect the remaining terms of this Agreement.

The ineffective provision shall be replaced by the agreement parties by such a provision, which legally comes closest to the economic sense and purpose of the invalid provision.

The above provision applies accordingly for any regulatory gaps in this agreement.

 

(3) The relationships between the contract parties shall be governed exclusively by the laws of the Federal Republic of Germany and the UN Convention on the international sale of goods shall be excluded (United Nations Convention on Agreements for the International Sale of Goods, CISG).

 

(4) The exclusive place of jurisdiction for all disputes arising from this contractual relationship is the residence of XPAY.

 

(5) The language of the Agreement is German.

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