PAYMILL is an innovative service provider in the processing of credit card payments for online sales. PAYMILL provides a tool for credit card payments that is simple, secure and quick to integrate in the websites of web-shop operators. PAYMILL also arranges for the required clearance through an acquirer, which includes the setup of merchant accounts, provided that the client fulfils the credit-rating requirements of the acquirer. PAYMILL provides the technical platform for processing payments.
The Partner deals with potential PAYMILL clients and is interested in introducing PAYMILL services to these clients (e.g., online shop operators whose web shops were developed by the Partner) and to forward their contact information to PAYMILL.
The objective of this collaborative agreement is to market the technical platform developed by PAYMILL, promote the services rendered and offer the Partner’s contacts a simple, secure and quick way to implement an online payment method for processing credit card payments.
The parties therefore agree to collaborate in accordance with the following provisions.
• “Disagio” is the difference between the amount of the online credit card payment via a client’s web shop and the amount to be paid to the client after the acquirer’s fees have been deducted.
• “Contacts” are companies/individuals with whom the Partner collaborates or otherwise has contact and who may be interested in using the PAYMILL solution and PAYMILL services.
• “Clients” are companies that conduct online business using a web shop either on their own or via PAYMILL’s technical platform and that conclude an agreement with PAYMILL for the use of PAYMILL services.
• “Client agreements” are agreements concluded between PAYMILL and the Partner’s contacts for using PAYMILL services for internet business.
• “Services” are services rendered by PAYMILL for clients in conjunction with the processing of credit card payments on behalf of the clients for sales made using the clients’ web shops.
PAYMILL retains all rights to the solution developed by PAYMILL. The Partner recognises PAYMILL’s existing proprietary rights in this respect and, during the duration of collaboration as well as for a period of twelve months thereafter, shall refrain from developing or offering his own solution as well as from commissioning another party to develop or offer the same, inasmuch as this might infringe upon the rights of PAYMILL, particularly in respect of any rights involving copyright, patents or trademarks as well as any other commercial proprietary rights.
The Partner’s right to present, recommend or provide his clients with solutions by other providers shall remain unaffected by this agreement. In the same manner, PAYMILL has the right to work together with other collaborative partners.
PAYMILL grants the Partner the non-exclusive right to market PAYMILL’s solutions and services for the duration of this agreement. There shall be no territorial limitation on the Partner’s marketing rights. PAYMILL is likewise entitled to engage other collaborative partners for marketing services in the region of the Partner.
The Partner shall independently market PAYMILL’s services to his contacts and shall receive the remuneration mentioned under Number 5 by successfully recruiting his contacts. The Partner shall be disposed to and shall commit to actively marketing PAYMILL’s services. The partner informs his clients that he receives a commission from PAYMILL which is usually calculated based on the transaction volume of successfully referred clients.
5. Information About PAYMILL’s Offers, Concluding Agreements with Clients, Integrating the PAYMILL Solution
The Partner’s contacts can easily obtain information about the range of PAYMILL’s services and test a trial version of the PAYMILL solution at www.PAYMILL.com. PAYMILL’s website provides clients with all tools (API) and information necessary for the integration of the PAYMILL solution in the contact’s web shop as well as for applying for and processing online credit card payments.
The agreement for the use of PAYMILL’s services is concluded directly between PAYMILL and the client via PAYMILL’s website. The Partner is not permitted to conclude an agreement between his contacts and PAYMILL.
If the Partner’s contacts wish to directly integrate PAYMILL’s online payment into a web shop in conjunction with the Partner’s own services (e.g., web-shop development), the Partner is entitled to integrate the PAYMILL solution for his client himself. However, even in such cases, the conclusion of an agreement between the Partner’s contact and PAYMILL shall be a prerequisite for the use of PAYMILL’s services.
The Partner shall notify PAYMILL of such contacts that have made use of PAYMILL’s services as a result of his referral, by encouraging the referred contact to register a PAYMILL account through one of the links provided in the partner portal, or by registering a PAYMILL account for the contact.
PAYMILL also endeavours to find out from the contact in the course of concluding the agreement whether the client was referred by the Partner. Those clients making use of PAYMILL’s services due to referral by the Partner will, upon verification, be kept on a client list compiled for the Partner by PAYMILL and subject to obligatory commission payments as specified in point 7.
If the Partner notifies PAYMILL that he has referred a contact with whom PAYMILL has either directly or through another partner had prior business relations (including verifiable acquisition attempts), PAYMILL shall immediately notify the Partner of this in writing. In such cases there shall be no obligation to pay commissions to the Partner. If more than one of PAYMILL’s partners claims to have referred a client, PAYMILL shall consider this contact to belong to the partner who first notified PAYMILL about the contact.
At the end of every year of the agreement the parties to the agreement shall both review and sign the client list kept for the Partner by PAYMILL, acknowledging the accuracy of the list as a basis for commission obligations. Any differences shall be amicably settled between the Parties.
PAYMILL retains the right to market future services to the Partner’s contacts, even directly.
For clients referred by the Partner, PAYMILL shall pay the partner a commission in the form of performance-related remuneration. This shall depend on the business being conducted through PAYMILL and on the successful processing of credit card payments via the client’s online shop through the acquirer engaged by PAYMILL. This means that the Partner’s claim to remuneration is only valid to the extent that the client operating the online shop has successfully completed PAYMILL activation and has been accepted by PAYMILL’s acquirer. If the client does not meet these requirements, no business will take place. Furthermore PAYMILL may reject clients recommended by the Partner should they be involved in a line of business that PAYMILL has declared to be off limits. PAYMILL will provide the Partner, upon request, with a list of lines of business that are off limits. This list may be updated by PAYMILL at its own discretion.
The specific commission rate payable to the partner is negotiated individually, and will be stated in the partner’s account within the partner portal.
The clearance and settlement of the commission shall be made on a monthly basis until the 15th of the following month, given that a minimum settlement amount of 50€ has been accumulated. Individual agreements for the minimal settlement amount (“threshold”) are possible.
Sales tax will be shown for German based companies. Any objections by the Partner, such as missing commission of a client referred by him, are to be brought to PAYMILL’s attention in writing, with detailed information about any existing errors. After six weeks have elapsed, the payment sent to the Partner shall be considered as accepted.
Should there be a clawback of any disagios already paid by PAYMILL involving the rescission of online purchases via a client’s web shop by the acquirer, and should this affect commissions that have already been paid to the Partner by PAYMILL, PAYMILL shall be entitled to offset these commissions using future commissions that become due on behalf of the Partner.
PAYMILL shall provide the Partner with a comprehensive overview of all commissions of the previous year during the first quarter of each calendar year. After inspecting this overview, the parties to the agreement shall both issue a balance acknowledgement to each other agreeing upon the completeness and accuracy of the payments.
The bank information that ought to be used for the commission payments will be maintained by the partner within the partner portal.
The parties to the agreement shall preserve and represent each other’s specific interests. Each of the parties to the agreement shall inform the other party without delay about all circumstances that might bring about changes to the collaboration.
To the extent necessary and at its own discretion, PAYMILL shall provide technical information and marketing documents to support the Partner, inasmuch as the Partner and/or his contacts have not already received the information as per point 5.
Both parties to the agreement shall designate each other as collaborative partners on their respective websites, with company and/or product logos and by briefly explaining the other’s range of services. The texts and graphics to be used, as well as their placement, shall be amicably agreed upon beforehand by both parties. Graphics and/or logos provided by PAYMILL must be used with the number of pixels specified by PAYMILL. PAYMILL is to be referred to as the Partner’s “Preferred Payment Service Partner”.
Furthermore the Partner shall be permitted to advertise using PAYMILL’s product name/trademark, whether alone or in conjunction with the Partner’s company name/trademark. The Partner is hereby prohibited from either registering his own or having third parties register commercial trademark rights that could be confused with PAYMILL’s trademarks or other business labels. PAYMILL shall reserve the right to prohibit any use of PAYMILL’s trademarks that PAYMILL considers to be of danger to the reputation of the brand. Any infringement of this provision shall give PAYMILL the right to give extraordinary notice to cancel this agreement.
Joint marketing activities between the collaborative partners, such as participating in appropriate events, shall be arranged and agreed upon individually.
The Partner’s right to use PAYMILL’s product names/trademarks shall cease once this agreement terminates, provided that no other agreement is reached between the parties.
The Partner shall undertake to inform PAYMILL in an appropriate fashion about any infringements that come to his attention with respect to the trademarks pertaining to this agreement as well as to PAYMILL’s commercial trademark rights and to ensure that he will provide PAYMILL with the necessary support for defending against the infringement either in court or out of court if PAYMILL intends to proceed against the infringement. The costs of the defence against the infringement by third parties shall be borne be PAYMILL.
The parties shall, during the term and after termination of this agreement, refrain from disclosing any confidential information to third parties, including subcontractors, that the parties to the contract have received from the other party or a client. Confidential information shall be defined as any data of a technical, commercial (especially conditions) or other nature—regardless of whether they have been documented or not—that involve the operational processes of the parties to the agreement or their clients. Exceptions to this are:
a) Information that is or will be generally known without either of the parties to the agreement violating this agreement in the process.
b) Information for which the party to the agreement can verify knowledge before learning it from the other party to the agreement.
c) Information passed on to the party to the agreement by third parties concerning which there is no confidentiality obligation. Violation of this obligation shall exist even if no intention or negligence can be proven.
d) A judicial or official directive requiring disclosure. In such cases the affected party shall inform the other party of this.
Both parties undertake to observe the legal provisions concerning data protection. Both parties shall expressly oblige their employees to observe the data protection provisions and to maintain confidentiality.
PAYMILL shall be liable for the continuance of the marketing rights conveyed to the Partner as well as for the commercial trademark rights used by PAYMILL at the time the contract was concluded. PAYMILL shall additionally only be liable for any claims for compensation by the Partner in case of intentional or grossly negligent behaviour of its management and executives. Additional claims by the Partner, regardless of their legal standing, are excluded. In particular, PAYMILL shall not be liable for consequential damages or other property damages incurred by the Partner, especially for loss of profit. This restriction of liability shall not apply when the cause of damage is due to intent or gross negligence; however, in such cases indemnification shall be limited to foreseeable damages.
Liability exclusion and liability limitation shall not apply for damage claims due to failure to fulfil obligations, the absence of a warranted quality, initial inability or impracticality for which PAYMILL is responsible.
This agreement shall take effect on the first calendar day of the month following its being signed and shall be valid for a period of 12 months. It shall be extended automatically by a further 6 months if no proper notice is given at least 3 months prior to the end of the agreement.
The right to extraordinary termination due to good cause shall remain unaffected. Good cause for extraordinary termination shall apply in particular if the other party to the agreement:
• applies for insolvency,
• permanently ceases to make payments or is considered to be insolvent for any other reason,
• initiates settlement proceedings, or
• violates significant confidentiality provisions of this agreement or existing trademark rights of the other party to the agreement.
Cancellation should be invariably made in written form.
When terminating the agreement, each party to the agreement must return all materials related to this agreement received from the other party to the agreement. All data stored on digital media is to be deleted. The Partners shall commit to refrain from taking any commercial advantage from the insights and knowledge gained, particularly specialist knowledge and trade secrets of the other party to the agreement, for a period of three years after the agreement has been terminated.
Giving notice and terminating this agreement as such shall not affect the obligation to provide commissions for contacts referred by the Partner as concluded during the agreement’s execution. Any commissions earned are to be calculated and paid out up to the end of the deadline for giving notice.
The Partner shall not be entitled to transfer or pledge his rights and/or obligations arising from this agreement, whether entirely or in part, without PAYMILL’s written approval.
The agreement is exclusively subject to the laws of the Federal Republic of Germany under exclusion of the CISG and conflict of laws.
The place of jurisdiction for all disputes arising from or due to this agreement, as well as the place of fulfilment for all obligations resulting from this agreement, shall be the Munich District Court I.
Compensation shall only be possible for undisputed or judicially established claims.
No collateral agreements to this agreement are to be made. Any changes or additions must be made in written form to be legally effective. The same shall be true for waiving the written form requirement.
Should a provision of this agreement and/or any changes or additions made to it be ineffective, this shall not affect the effectiveness of the rest of the agreement. The parties shall work together to replace the ineffective provision by an effective one that comes closest to the desired economic purpose. The same shall be true in the case of a loophole in this agreement.