Separate conditions for payment functions | Gastronovi Pay

gastronovi GmbH

As of: 13.05.2024

These separate terms and conditions for payment functions - Gastronovi Pay (the "Payment Terms and Conditions") apply in addition to and only together with the General Terms and Conditions of gastronovi GmbH (the "GTC"). They shall take precedence over the GTC insofar as they contain deviating provisions. Insofar as these Payment Terms and Conditions do not contain any stipulations, the GTC shall also apply to the topics contained herein.

1 General, contractual relationships

1.1 Customers can use the "Gastronovi Pay" function via the "Gastronovi Office" software provided by Gastronovi (the "Software") using the payment services of the provider Adyen N.V., Simon Carmiggeltstraat 6-50, NL1011 DJ, Amsterdam, Netherlands ("Adyen"). Customers can use it to process electronic payments from their end customers via card terminals or so-called "card not present" transactions.

1.2 Gastronovi takes on the role of technical integrator of Adyen's payment services: the option of using the service via the software is offered.

1.3 The customer who wishes to use Gastronovi Pay and thus Adyen's payment services (the "Adyen Services") must go through a predefined onboarding process, which requires, among other things, the conclusion of a "Merchant Agreement" between the customer and Adyen, on the basis of which the payment services are specifically provided by Adyen to the customer. Gastronovi is not a party to this contract.

1.4 Gastronovi is at no time technically or commercially involved in the processing of specific payment transactions and has no influence on this - apart from the fact that the processing of a payment transaction is triggered by the transmission of a corresponding billing data record by Gastronovi. In particular, Gastronovi does not come into possession of the funds at any time.

1.5 The use of Adyen services results in the following contractual relationships:

1.5.1 The customer concludes the so-called underlying transaction with his end customer, in the context of which a payment is to be made by the end customer to him (or a refund).

1.5.2 The Customer is connected to Gastronovi via a user agreement for the Software in accordance with the GTC and these Payment Terms and Conditions, which define the legal and technical basis for the Customer to use Gastronovi Pay, i.e. the Adyen services for payment processing, via the Software.

1.5.3 The payment transaction is processed on the basis of a "Merchant Agreement" between the customer and Adyen, which forms the contractual basis for the provision of Adyen services by Adyen and must be accepted by the customer during the onboarding process.

1.5.4 Gastronovi may also provide certain services or ancillary services to the Adyen Services (see Section 2.4) itself or have them provided by partners / merchants certified by Gastronovi ("Digitization Partners"), which may have a substantive connection to the contractual relationship between the customer and Adyen, e.g. support services or the procurement of card terminals. These are provided by Gastronovi or the Digitization Partners on their own contractual basis or as vicarious agents of the parties and therefore do not make Gastronovi or the Digitization Partner a party to the Merchant Agreement or any other legal relationship between the customer and Adyen.

1.6 Insofar as Gastronovi markets the integration of Adyen services or other providers and the offer of (bundled) usage options under its own brand or product names, such as "Gastronovi Pay", the contractual constellations described above do not change: Gastronovi will in no case enter into contractual relationships with customers for the provision of payment services or otherwise assume legal responsibility for the execution of such services.

2 Enabling the use of Gastronovi Pay

2.1 Gastronovi enables customers to use Adyen services via Gastronovi Pay in the software. In addition to the existence of a valid license for the software, the prerequisite for this is the complete completion of the onboarding process specified by Adyen (see Section 3) in order to register a so-called "Sub-Merchant Account" with Adyen.

2.2 Any technical requirements for the use of certain Adyen services are stored in the Gastronovi support portal. Gastronovi reserves the right to supplement, expand or adapt these requirements as required, in particular if changes to the Adyen services or the requirements for this from Adyen result in a corresponding need.

2.3 In the context of onboarding, Gastronovi acts only as an intermediary of declarations and information and, when using the Adyen Services, only as a transmitter of information for the execution of payment transactions of the Customer and, unless otherwise provided herein, does not provide any services of its own, i.e. in particular does not assume any responsibility for activities of Adyen or the Customer vis-à-vis the other party. In particular, Gastronovi therefore does not check the completeness or accuracy of the customer's details, payment requests or transactions or otherwise assume any responsibility for this vis-à-vis the customer. Should Gastronovi nevertheless be held liable by Adyen or third parties due to the customer's statements or other actions in the onboarding process or in the use of Adyen's payment services, Sect. 10.4 and 10.5.

2.4 Gastronovi only provides the following services in connection with onboarding and the Adyen Services itself or through digitization partners (the "Gastronovi Services"):

2.4.1 Connecting the software to the Adyen platform to enable customers to use Adyen services;

2.4.2 Procurement and integration of payment terminals for use with the software;

2.4.3 Support with the registration of customers for Adyen services via the onboarding process in accordance with Clause. 3 in addition to the transmission of KYC documents and support for customers with all questions regarding Adyen services and/or the onboarding process;

2.4.4 Set up and manage the settings and configurations chosen by the customer for customers on the Adyen platform via the dashboard provided for this purpose, including the risk management and fraud prevention tool settings, but without assuming responsibility for the appropriateness, effectiveness or completeness of the settings and configurations;

2.4.5 Support services in accordance with para. 5.

2.4.6 Gastronovi can also take over the preparation and dispatch of invoices on behalf of Adyen with regard to the remuneration for the use of Adyen services (see Section 9).

2.5 Gastronovi does not promise any specific availability for the usability of Adyen services. Technical or legal adjustments, maintenance work or outages or other circumstances on the part of Adyen or Gastronovi may result in temporary restrictions or unavailability of Adyen services.

2.6 Gastronovi reserves the right, at its own discretion, to permanently restrict the Adyen Services offered via the Software or to discontinue them in whole or in part, in particular if this appears necessary for technical or legal reasons.

2.7 Gastronovi shall inform the customer, as far as possible, of any cases covered by para. 2.5 and 2.6 with a reasonable period of notice, if possible at least 24 hours (Section 2.5) or 6 weeks (Section 2.6) in advance. The current status as well as announcements and maintenance work are regularly listed in the status overview for Gastronovi services (currently available at https://status.gastronovi.com).

3 Onboarding process

3.1 In order to be able to use Adyen services in principle and in connection with the software, the customer must complete an onboarding process specified by Adyen. After signing the payment agreement, Gastronovi provides the customer with a link that leads to the corresponding Adyen onboarding website.

3.2 In the onboarding process, the customer must first provide truthful information about his identity and business activity as well as other information that Adyen requires to carry out the so-called "Know Your Customer" ("KYC") check.

3.2.1 The required information is requested during the onboarding process on the Adyen website.

3.2.2 Adyen's communication with the customer about problems, errors or omissions in the information and documents submitted as part of the onboarding process is always mediated via Gastronovi.

3.2.3 Adyen will, in its sole discretion, approve or reject any customer who submits a registration request as part of the onboarding process, using its standard acceptance procedures designed to ensure compliance with applicable laws and Program rules, and may request the provision of additional KYC information and may contact the customer directly for this purpose (with Gastronovi participating in and being copied on such communication) or engage Gastronovi as an intermediary in the communication. Adyen will justify any rejection and, at Gastronovi's request, reconsider any rejection that Gastronovi considers unjustified. Ultimately, Adyen decides at its own discretion.

3.2.4 Adyen reserves the right to make adjustments to the required information with 45 days' notice or, if necessary to implement legal requirements or those of the card system operators, with a shorter notice period. If adjustments have an impact on existing customer relationships with Adyen, Gastronovi will immediately forward the adjustments to the customer. With regard to the assessment of the customer's compliance with adapted requirements, para. 3.2.3 accordingly.

3.3 A prerequisite for the successful completion of the onboarding process and thus for the use of the Adyen Services is also the conclusion of the Merchant Agreement between the customer and Adyen on the basis of and by accepting the "Adyen Sub-Merchant Terms and Conditions" and/or the other applicable contractual provisions of Adyen, which are made available to the customer for inspection during the onboarding process.

4 Execution of payment services by the payment service provider, fraud control tool

4.1 The Adyen services and in particular the processing of payment transactions are carried out on the legal basis of the "Sub-Merchant Agreement" concluded between Adyen and the customer or other contractual agreements applicable between these parties.

4.2 The scope of the Adyen Services currently provided to the Customer via the Software in accordance with these Terms is:

4.2.1 the processing and acquiring of Card Not Present (CNP) transactions generated via the Software; and/or

4.2.2 POS (Point of Sale) transactions generated by customers using certain mobile devices ("SoftPOS" / "Tap to Pay") or payment terminals that Adyen makes available to the customer via Gastronovi (see section 8).

4.3 Other Adyen services can be offered by Gastronovi at any time via the software. These may be subject to certain technical requirements or other conditions, which are determined and adapted by Adyen or Gastronovi at their own discretion. Other Adyen services may also be subject to separate remuneration. Gastronovi will inform customers separately about new offers, their requirements and any remuneration. The provisions of these terms and conditions apply accordingly to the relevant and other Adyen services, unless expressly agreed otherwise.

4.4 All transactions processed through the Adyen services are checked by the Adyen Fraud Control Tool, which performs a series of checks during a transaction and assigns a scoring value to the transaction, indicating the likelihood of the transaction being fraudulent from Adyen's perspective. Gastronovi can configure the scoring values for the Adyen Fraud Control Tool via the Dashboard on behalf of the Customer (see Section 6.2) in order to determine how the Adyen Fraud Control Tool assesses the Customer's transactions.

4.5 The Fraud Control Tool does not guarantee the prevention of fraudulent transactions or the resulting chargebacks or fines. Regardless of the scoring values determined, transactions can be fraudulent or non-fraudulent.

4.6 Gastronovi will make the default settings suggested by Adyen when the customer registers for the first time and will only make changes to these settings if the customer instructs Gastronovi to do so or if adjustments are necessary due to changes in Adyen's policies or legal regulations.

4.7 According to its own statements, Adyen reserves the right to cancel transactions where there is reasonable suspicion of fraud or other criminal activity, even if the Fraud Control Tool has not blocked the transaction. In such a case, Adyen shall immediately inform Gastronovi of these reasons and Gastronovi shall immediately pass them on to the customer.

5 Support services

5.1 Gastronovi provides 1st and 2nd level support itself or via digitization partners regarding the use of Adyen services in connection with the software or card terminals purchased from Gastronovi or digitization partners and forwards 3rd level support issues to Adyen for further processing.

5.2 The general support conditions of Gastronovi, which are contained in the current General Terms and Conditions and are available at https://www.gastronovi.com/en/terms-and-conditions#support, apply to the support services insofar as they relate to the software.

6 Use of payment terminals, procurement

6.1 For the use of Adyen services for payment processing via payment terminals, the respective terms and contractual documents of Adyen, which are agreed between the customer and Adyen, apply, e.g. the Payment Device Terms of Service (currently available at https://www.adyen.com/legal/payment-device-terms-of-service) or the corresponding provisions of the Additional Services Terms (available via Adyen, currently available at https://www.adyen.com/legal/additional-services-terms) that apply exclusively between Adyen and the customer.

6.2 The customer can purchase payment terminals on the basis of separate purchase contracts via Gastronovi. Gastronovi acquires these itself from Adyen and sells them to the customer in its own name and for its own account.

6.3 Customers can also book or purchase optional additional hardware or SIM card services for use with mobile SIM payment terminals on the basis of separate contracts with Gastronovi.

6.4 The statutory warranty applies to products purchased from Gastronovi, with the proviso that the warranty period is one year from the transfer of risk. This does not apply to the cases in 10.1.5, in which the statutory limitation periods apply.

6.5 In addition, card terminals for which the "Payment Device Replacement Service" applies or must be purchased in accordance with the applicable Adyen terms and conditions can be replaced in accordance with the relevant Adyen terms and conditions (currently available at https://www.adyen.com/legal/payment-device-terms-of-service#payment-device-replacement-service). Gastronovi supports Adyen and the customer in using and processing these services. The statutory warranty rights vis-à-vis Gastronovi remain unaffected by this.

6.6 At the end of the term of the Software Usage Agreement with Gastronovi, the Sub-Merchant Agreement or in the event of early termination of this Agreement or the Sub-Merchant Agreement and/or in the event that the Card Terminals are permanently no longer used by the Customer, the Customer shall immediately return all Payment Terminals via Gastronovi to Adyen for proper disposal. Adyen is responsible for the proper disposal of the payment terminals in accordance with the applicable rules and regulations and will bear all related costs.

7 General obligations of the customer for the use of Adyen's payment services

7.1 The customer may only use Adyen's payment services to receive payments in his own name. He may not resell or lease the payment services or otherwise allow third parties to use the payment services to receive payments intended for third parties.

7.2 The customer may not use the payment services for other types of products and services than those specified in his registration in the onboarding process.

7.3 The customer may not use the payment services for products or services that are listed in Adyen's current list of prohibited products and services (currently available at https://www.adyen.com/legal/list-restricted-prohibited).

7.4 If at any time Gastronovi or Adyen discovers that the information the Customer has provided about its business is incorrect or has changed without Gastronovi or Adyen having been informed, or if the Customer breaches any of these Terms, the Services may be suspended and/or terminated by Adyen with immediate effect in accordance with the Merchant Agreement and fines or penalties may be imposed or required by relevant regulatory authorities or the card scheme operators for the unregistered or unlawful use of the Payment Services.

7.5 If Gastronovi or Adyen becomes aware of a possible risk of a fine and/or receives a notice from Card Scheme Providers in connection with the Customer's conduct, the Customer shall, at Gastronovi's request, provide all reasonable cooperation to assist in the investigation of the relevant circumstances and to remedy the relevant breach, without prejudice to any other rights and remedies of Adyen or Gastronovi under any applicable agreement or statutory provision.

8 Remuneration, billing

8.1 The fee for the provision of the Adyen services and for the Gastronovi services is due per transaction and is based on the currently applicable fee table, which is attached to the Payment Agreement between Gastronovi and the Customer in the then current version or can be accessed via the Gastronovi website. Gastronovi reserves the right to adjust the fee table with effect for future transactions at any time. This also applies in the event that agreements deviating from the standard fee table have been made between Gastronovi and the customer in individual cases.

8.2 The fee already includes as a share the remuneration that Adyen or other parties involved in the payment transactions receive for the execution of the Adyen services or payment transactions, so that no separate remuneration is payable to Adyen in addition to the fee. This shall not apply to the procurement of card terminals, which shall be remunerated separately by individual agreement.

8.3 The prices are net, i.e. plus statutory VAT. Depending on the invoicing method (see Clause 8.5), VAT shall be invoiced either together with the fee or separately and charged in accordance with Clause 8.5. 8.4 or 9.2.

8.4 The fee is regularly not paid by the customer to Gastronovi, but is recorded by Adyen when the transactions are executed, retained when the customer balances are paid out and paid directly to Gastronovi via a shortened payment method. The payment of customer balances is otherwise based on the agreements between the customer and Adyen and the applicable payment agreement with Gastronovi.

8.5 Depending on the current structure of the relationship between Adyen and Gastronovi, either Adyen or Gastronovi will be responsible for invoicing and sending the payment.

9 Power of attorney

9.1 The customer authorizes and instructs Gastronovi to access the data and settings in Adyen's systems for the purpose of enabling smooth use and to manage them on its behalf, insofar as this is necessary for the provision of services by Gastronovi or Adyen.

9.1 The customer also authorizes Gastronovi to view the customer balances on the payment accounts held for the customer with Adyen and to issue binding payment orders in relation to these balances in accordance with the following principles:

9.2.1 The power of attorney is limited exclusively to the payment of VAT amounts attributable to the remuneration to be paid to Gastronovi for the use of Adyen services. Adyen may deduct these amounts as part of the payout process in accordance with section. 9.4 itself, so that a separate collection by Gastronovi is required.

9.2.2 The customer's power of disposal over the payment accounts held with Adyen remains unaffected by the power of attorney and continues to exist without restriction to the extent previously existing.

9.2.3 The power of attorney can be revoked unconditionally at any time.

9.2.4 In the event of revocation of the authorization or in the event of dispositions that prevent the collection of the relevant amounts, use of the Adyen services is not possible.

10 Liability, indemnification

10.1 The following applies to Gastronovi's liability:

10.1.1 Gastronovi shall only be liable for damages of any kind - if the other requirements for a claim are met - in cases of intent and gross negligence.

10.1.2 Gastronovi shall only be liable for simple negligence in the event of a breach of an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely (cardinal obligation).

10.1.3 Otherwise, liability for damages of any kind, regardless of the basis of the claim, including liability for culpa in contrahendo, is excluded.

10.1.4 If Gastronovi is liable for simple negligence, liability shall be limited to the damage that Gastronovi could typically expect to occur according to the circumstances known at the time the contract was concluded.

10.1.5 The above limitations and exclusions of liability shall not apply if Gastronovi has assumed a guarantee, in the event of fraudulent intent, for damages that are to be compensated under the Product Liability Act, or for damages to life, limb or health.

10.1.6 The above limitations of liability shall also apply in favor of Gastronovi's vicarious agents.

10.2 The customer shall be liable to Gastronovi in accordance with the statutory provisions.

10.3 Gastronovi may be liable to Adyen for refunds, chargebacks, chargebacks or similar (together with any corresponding fees charged by card providers or comparable third parties) for payment transactions that were paid out to the customer via Adyen services and cannot be collected from the customer balances at Adyen in accordance with the Sub-Merchant Agreement.

10.4 The Customer undertakes to indemnify Gastronovi against all claims asserted by Adyen or other third parties against Gastronovi in connection with the Customer's use of the Adyen Services or the Gastronovi Services, unless Gastronovi is at fault.

10.5 This also applies in particular to official or other regulatory fines or penalties based on the customer's behavior, insofar as these were not imposed exclusively due to Gastronovi's own fault.

11 Runtime

11.1 The contract for the use of Adyen services on the basis of these terms and conditions has a term of one month and is automatically extended by a further month if it is not terminated with one month's notice to the end of a calendar month.

11.2 The term also runs concurrently with the software usage contract. Termination of the Software Usage Agreement shall accordingly result in termination of the term of these Terms and Conditions with effect from the termination date of the Software Usage Agreement.
The term also coincides with the legal relationship between Gastronovi and Adyen, on the basis of which Gastronovi enables the use of Adyen services. Upon termination of the legal relationship, the term of these terms and conditions and the possibility to use the Adyen services via the software shall also end. Gastronovi shall inform the customer of this immediately after becoming aware of it.

11.3 The right to terminate the contract for good cause remains unaffected.

11.4 Separate termination of the term of these Terms and Conditions without simultaneous termination of the Software Usage Agreement will result in the loss of the ability to use the Adyen Services within the Software.

11.5 The no. 6.4, 6.6, 7.5, 9, 13 shall apply beyond the end of the term of these Terms and Conditions insofar as they relate to circumstances during the term of these Terms and Conditions.

12 Subject to change

Gastronovi reserves the right to amend these Terms and Conditions or other provisions of Gastronovi in connection with the Adyen Services or Gastronovi Services separately and independently of the GTC at its reasonable discretion if a need for adjustment arises for factual or legal reasons. Gastronovi shall notify the Customer of any intended changes with a notice period of at least one month before the intended entry into force of the change. The customer is entitled to terminate the contractual relationship with Gastronovi with a notice period of 2 weeks and with effect from the intended date of entry into force if he does not agree with the changes. If the customer does not cancel within this period, the change is deemed to have been accepted. Gastronovi shall inform the customer of this consequence upon notification of an intended change.

13 Final provisions

13.1 These terms and conditions are governed by German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

13.2 If gaps arise in the practical application of these terms and conditions which the contracting parties have not provided for, or if the ineffectiveness of a provision is established, they undertake to fill or replace this gap or ineffective provision in a factual, appropriate manner based on the economic purpose of the contract.

13.3 The exclusive place of jurisdiction for all disputes arising from or in connection with these terms and conditions is Bremen, provided the customer is a merchant. Gastronovi remains entitled to file or initiate legal action or other legal proceedings at the customer's general place of jurisdiction.