General Terms and Conditions
For Merchants use of the Softpay Product / Softpay Solution
Last updated: September 5, 2023
1. Application of terms and conditions
These General Terms and Conditions shall be applied to the Softpay Solution delivered by Softpay to the Merchant. The General Terms and Conditions shall be applied to all companies within the same group as the Merchant, that Softpay supplies the Softpay Solution to. These General Terms and Conditions shall apply unless a written agreement stating otherwise exists between the Merchant and Softpay. In case of discrepancies between these General Terms and Conditions and the main agreement entered into between Softpay and the Merchant (the “Main Merchant Agreement”), including its exhibits and schedules, the Main Merchant Agreement will have precedence.
2. Changes to these Terms and Conditions
Except where prohibited by applicable law, Softpay reserves the right to change these General Terms and Conditions at any time without notice. The General Terms and Conditions and any updates hereto are available on Softpay’s website (Terms and Conditions). The Merchant’s continued use of the Softpay Solution after any changes to these General Terms and Conditions indicates the Merchant’s acceptance of such changes. It is the responsibility of the Merchant to review these General Terms and Conditions for any changes. Softpay reserves the right to change any information, material, or content (including, but not limited to, details, features and availability of the Softpay Solution), at any time, and from time to time, without notice.
If the changes weaken the Merchant’s position, the Merchant has the right to terminate the Main Merchant Agreement with immediate effect. Such termination must be received by Softpay at the latest two (2) weeks after the updates of the General Terms and Conditions.
3. Delivery of the Softpay Solution
3.1 Time of Delivery
Softpay shall deliver the ordered product at the agreed time or, if no explicit agreement about time of delivery has been made, within a reasonable period after the Main Merchant Agreement has been signed by the Parties or an order has been placed.
3.2 Acceptance of Delivery
The Merchant shall inspect the Softpay Solution, and any associated services delivered to the Merchant, immediately following delivery. The delivery shall be deemed accepted when the Merchant pays the invoice related to the delivery or (2) two weeks from delivery at the latest. Eventual claims must be submitted in written form.
3.3. Delay due to the Merchant
Softpay retains the right to charge for the use of the ordered product(s) in the event delivery of the product has not been possible because of delay due to the Merchant.
4. Production and Use of Service
4.1 Production of Service and Changes
In producing the Softpay Solution described in the Main Merchant Agreement, Softpay uses its own methods in a manner it deems best and uses subcontractors to produce part of the product. Each Party shall be responsible for the performance of its subcontractors in the same manner as for its own performance. Softpay retains the right to make changes that affect the technology, the Softpay Solution and the use of the Softpay Solution. If such changes require modification of the Merchant’s devices or software, the Merchant shall be responsible for arranging such modifications and for the costs involved. Softpay shall inform the Merchant in a timely manner and the Merchant is obliged to keep updated on new versions and requirements on developer.softpay.io.
4.2 Product Description
The description of the Softpay Solution is available in an Exhibit or schedule to the Main Merchant Agreement between Softpay and the Merchant and any updates will be available on developer.Softpay.io. Descriptions in brochures, general website, presentations etc. shall not be considered product descriptions and shall not bind Softpay to any obligations.
4.3 Document and Usage Rights
Ownership of and intellectual property rights to the Softpay Solution, including software, documents, testing material and information, and their modified versions are the sole property of Softpay or subcontractors to Softpay and the Merchant has no right without the prior written consent from Softpay to copy, translate, or in any way modify the material, documents or software, or transfer them to a third party or use the software for any other purpose than the intended purpose, which is to initiate attended transactions at the point of sale. Upon the termination of the Main Merchant Agreement, the Merchant must at its own expense either return or destroy all original and duplicate copies, data, mediums and documentation in its possession.
The Merchant is granted a non-exclusive, revocable, non-transferable, non-sublicensable and time limited right to use the Softpay Solution in the countries agreed in the Main Merchant Agreement, on the terms and conditions set out in in the Main Merchant Agreement and these General Terms and Conditions, throughout the term of the Main Merchant Agreement.
The license granted by Softpay to the Merchant is subject to the following prohibitions:
- The Merchant must not make any amendments or alternations to, reproduce, or reverse engineer the Softpay Solution.
- The Merchant must not sub-license or transfer its right to access and use the Softpay Solution.
- The Merchant must not permit any unauthorised person to access or use the Softpay Solution.
- The Merchant must not republish or redistribute any content or material from the Softpay Solution.
- The Merchant must not conduct or request that any other person conduct any load testing or penetration testing on the Softpay Solution without the prior written consent of Softpay.
The Merchant shall use reasonable endeavours, including reasonable security measures relating to account access details, to ensure that no unauthorised person may gain access to the Softpay Solution.
The Merchant must not use the Softpay Solution in any way that causes, or may cause, damage to the Softpay Solution or impairment of the availability or accessibility of the Softpay Solution.
The Merchant must not use the Softpay Solution in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
Upon termination or expiration of the Main Merchant Agreement for any reason, the Merchant shall have no further rights to use or access the Softpay Solution.
4.5 Merchant hardware, Software and Data Connections
The Merchant shall be responsible for purchasing, maintaining and operating any hardware, software and connections which are not part of the Main Merchant Agreement, but which are necessary for the Softpay Solution to work in the intended way.
It is the responsibility of the Merchant to purchase the necessary devices and Softpay does not provide any guarantees for the functionality of specific devices. The device must be online to perform transactions and all costs of operating the device must be borne by the Merchant.
The Softpay Solution works on Android COTS devices and approved enterprise devices. A list of devices which have been tested by Softpay can be found on developer.softpay.io. The list is not exhaustive, and the Merchant may provide Softpay with a different device for test purposes.
The device must have an embedded Near-Field Communication (NFC)NFC antenna and running a supported version of the Android IOS and comply with any requirements in the Tap-to-phone / Tap-on-phone / PCI specifications.
For security reasons, Softpay requires that the device supports and is certified towards Google Mobile Services.
Softpay will release new versions of the Softpay Solution, and the Merchant shall update and allow Softpay to update devices as deemed necessary by Softpay. The Merchant must stay informed on new releases on developer.softpay.io. Any use of software versions other than the most recent release shall be at the Merchant’s own risk. The latest version will be available on Google Play Store.Devices that are not updated will no longer be permitted to make a transaction.
Softpay shall be entitled, but not obligated, to collect data to improve performance, functionality and security and perform data analysis.
Part of the Softpay Solution is a backend attestation and monitoring component. This component scores transactions for possible fraud and a transaction may be declined if e.g., the device is rooted, the device has not been security patched in the past 12 month, there is suspicious usage patterns, suspicious apps on the device etc.
All devices with the Softpay product must be monitored and supervised by the company and the devices may not be used as an unattended payment terminal.
For security reasons, Softpay requires that the device supports and is certified towards Google Mobile Services.
4.6 Cards Used in Softpay Solution
The Merchant shall be responsible for making sure that only cards from card schemes with which the Merchant has an agreement and which are supported by the Softpay Solution are being used in the Softpay Solution.
5. Security and Standards
5.1 Security Standards
It is the responsibility of Softpay to ensure that the Softpay Solution fulfils the necessary security standards and certifications including tap-to-phone / tap-on-phone and / or MPOC.
5.2 Integration with POS Systems
If the Softpay Solution is integrated into the Merchant’s POS system by the use of the specified Softpay Solution (see developer.softpay.io), it is the responsibility of Softpay not to send any unencrypted card data or other sensitive card data to the POS.
6. Maintenance and Error Correction
6. 1. Errors
The Softpay Solution is deemed to have an error if it significantly deviates from the features specified in the Main Merchant Agreement and any updates specified on developer.Softpay.io and if such deviation significantly impedes the use of the Softpay Solution. Softpay does not guarantee uninterrupted availability of the Softpay Solution nor does Softpay guarantee that possible interruptions or errors will be dealt with by any present deadline.
6.2 Maintenance and Error Correction
Softpay focuses on maintaining the Softpay Solution in such a way as to minimize the number of errors and will correct serious errors as soon as possible. Softpay has the right to, without any prior notice, temporarily suspend the Softpay Solution so that it cannot be used, in the case of an acute security error. If Softpay suspends the Softpay Solution, Softpay shall inform the Merchant as soon as possible. Softpay has the right to temporarily suspend the Softpay Solution, provided that Softpay has informed the Merchant with at least one (1) weeks’ notice, for the purpose of error correction and / or maintenance work or similar. Softpay shall do its best to minimize the time of the suspension of the Softpay Solution and to minimize the inconvenience for the Merchant. Advance notification may be given on the Softpay website, the Softpay portal or by sending an email / SMS. Softpay has no other obligations regarding error correction than stated above.
6.3. Restrictions to Error Correction
Correction of errors caused by the Merchant or things beyond Softpay’s control is not the responsibility of Softpay. If Softpay helps correct such errors, Softpay shall charge the Merchant separately for such error correction. Errors which are not the responsibility of Softpay includes (not exhaustive list): Misuse of the Softpay Solution, careless or negligent compliance with any Softpay guidelines including such guidelines available on developer.softpay.io and on Softpay’s web portal, the devices used as payment terminals, data connections, software or settings not part of the Softpay Solution, non-compliance with requirements for devices and operating systems. Softpay does not guarantee that the Softpay Solution will work on a specific device, and it is up to the Merchant to perform a test. Softpay is not responsible for any changes in requirements by Payment Card Industry (PCI), card schemes or other relevant authorities which may impact if a certain device and / or operating system may be used. Softpay’s responsibility for error correction is limited to the actual error correction.
7. Intellectual Property Rights
7.1 Softpay’s Responsibility
It is the responsibility of Softpay to ensure that the Softpay Solution do not violate current intellectual property rights during the term of the Main Merchant Agreement and in the specific country where the Merchant is using the Softpay Solution. The Softpay Solution may only be used within EU and only in the country(ies) which is stated in the Main Merchant Agreement.
7.2 Defending Rights
If legal action is taken towards the Merchant or demands are made on the basis that the use in the specific country in EU of the Softpay Solution violates an intellectual property right, Softpay shall provide the Merchant with defensive action it deems most appropriate and will reimburse the Merchant for compensatory damages the Merchant is sentenced to pay. The Merchant is not entitled to any other compensation whatsoever. The Merchant does not, without prior written consent from Softpay, have the right to settle or in other ways negotiate with the plaintiff or complainant, Softpay’s liability to pay the above compensation is conditional on the Merchant, immediately upon receiving knowledge of such claims, giving Softpay written notification of the claims, officially granting Softpay the right to represent the Merchant in the matter and offering Softpay all the information and assistance needed in the handling of the matter.
7.3 Rectification of an Established Violation
If a violation of intellectual property rights described in §7.2 has been legally established or if Softpay deems a violation likely, Softpay shall, at its own discretion and expense, acquire the right to continue the use of the violated service or part of the service, replace the service with a corresponding product that does not violate the aforementioned rights, or change the Softpay Solution in such a way that it is no longer in violation. Softpay also retains the right to no longer offer the Softpay Solution to the Merchant without notice, if a violation of intellectual property rights described in §7.2 has been legally established or if Softpay deems a violation likely. Softpay’s liability in the case of a violation of intellectual property rights is limited to action set forth in this §7.
7.4 Limited Liability
Softpay shall not be held liable for violations of intellectual property rights caused by the Softpay Solution having been changed or used by the Merchant for purposes it was not intended or approved for, or by being used in conjunction with a product or service supplied by another supplier not tested by Softpay or against Softpay’s instructions or recommendations including recommendations available on developer.softpay.io.
Softpay is not liable for consequential losses and indirect losses, including operating or turnover losses, loss of time, loss of transactions, loss of work or loss in the event of inadequate utilization capacity, data loss or regeneration of data while the delivered services are not functioning or not delivered. This applies irrespective of whether Softpay knew or ought to have known of the risk of loss.
8. Client Information and its Use
8.1 Providing Information
Prior to the activation of the service, the Merchant must provide Softpay with all the information Softpay has requested for activating the service (further referred to as “Merchant Information”) and verify the accuracy of the recorded information. The Merchant shall without delay inform Softpay of any changes to its Merchant Information. It is the responsibility of the Merchant to ensure that all persons registered by the Merchant as users are aware of the submission to Softpay of Merchant Information that concerns them.
8.2 Release of Merchant Information
Softpay has the right to release Merchant Information in the scope mandated by current legislation.
Each Party is liable for its acts and omissions under the Main Merchant Agreement and these General Terms and Conditions in accordance with applicable law, subject to the terms set out in the Main Merchant Agreement and these General Terms and Conditions.
9.1 Liability Limitations
Neither of the Parties are liable for consequential losses and indirect losses, including operating or turnover losses, loss of time, loss of transactions, loss of work or loss in the event of inadequate utilization capacity, data loss or regeneration of data while the delivered services are not functioning or not delivered. This applies irrespective of whether the Party who is liable for compensation knew or ought to have known of the risk of loss.
Softpay shall not be liable for damages that Softpay could not reasonably have foreseen. Nor shall Softpay be obliged to compensate for damages caused by matter that are the responsibility of the Merchant or a third party (including, but not limited to damages caused by the actions of the Merchant, the Merchant’s employees or other users of the Softpay Solution telecommunication companies, EPOS vendors) nor for damages caused by matters not under the control of Softpay (e.g. thunder, electrical grid, fire, water damage, or damage caused by other accidents or catastrophes).
If the Softpay Solution malfunctions and the payment card transaction is lost or for any other reason is not completed, Softpay is not liable for the resulting loss or liable in any way whatsoever.
Softpay is not obligated to compensate Merchant for exercising its rights as set forth in the Main Merchant Agreement or these General Terms and Conditions, such as problems caused by a temporary suspension of service as described in section §6.2.
Softpay’s total aggregated liability under the Merchant Agreement and these Terms and Conditions shall for each contract year be limited to an amount corresponding to 50% of the fee paid by Merchant to Softpay in the twelve (12) months preceding any such claim.
Softpay’s total liability is limited to compensating for damages described in this §9.
If Softpay delivers the transaction to the acquirer, which has an agreement with the Merchant, the Merchant cannot demand any damages from Softpay, regardless that the acquirer refuses to receive and or accept the transaction.
If the Merchant installs software, use settings which are not correct / suitable, use faulty data connections or in any other way is responsible for the malfunctioning of the Softpay Solution, the Merchant is obliged to reimburse Softpay for eventual damages and the cost of finding the source of the malfunction.
9.4 Demand for Compensation
A demand for compensation must be made within a reasonable time from the moment the damage was first noted or should have been noted, but no later than one (1) year after the alleged damage has occurred.
10. Password, Username, Credentials etc.
10.1 Password, Username, Credentials etc.
The Merchant is responsible for the security of its username, password, credentials and for all damages caused by misuse of username, password, credentials and similar information.
11. Sales Interface
11.1 Sales Interface, Merchant Responsibilities
The Merchant is responsible for the integration to and testing of the Softpay 3rd party API. The Merchant agrees to comply with and maintain at its own expense the 3rd party API defined by Softpay.
11.2 Sales Interface, Softpay Responsibilities
Softpay is responsible for updating the 3rd party API and for the documentation of the 3rd party API. Softpay may issue new versions of the Softpay Solution and Softpay 3rd party API, and it is the responsibility of the merchant to keep their solution updated. Softpay shall not be responsible for costs to the Merchant caused by updating the Softpay Solution or 3rd party API.
12. Other Terms and Conditions
12.1 Index adjustment
Each year on January 1st, Softpay will adjust all fees with the percentage change in the Danish Consumer Price Index, however, in no event less than 2 %. The change shall be determined by comparison of the figure for the previous January 1, with that of January 1 of the current year.
12.2 Interest on late payments
If the Merchant fails to make payment by the agreed time, Softpay shall be entitled to claim interest on any overdue amount, using the Danish Certificates of deposit rate, as set by ‘Danmarks Nationalbank’, plus 5 %.
12.3 Confidentiality Obligation
Each Party is obliged to maintain the confidentiality of all confidential material and information it has received from the other Party. Softpay retains the rights to released materials and information and the Merchant shall not, without a separate written agreement, have the right to take advantage of them other than in the immediate context of the Main Merchant Agreement. Upon the termination of the Main Merchant Agreement, the Party must return all material and information handed to it by the other Party and destroy any material or copies in its possession. Both Parties are responsible for ensuring that their employees and eventual subcontractors commit to the confidentiality terms mentioned above. These confidentiality terms remain in effect after the termination of the Main Merchant Agreement.
Unless otherwise specified in the Main Merchant Agreement, merchant shall not be entitled to assign or transfer any of its rights and obligations under this the Main Merchant Agreement to a third party without the prior written consent of Softpay.
12.5 Settlement of Disputes and Jurisdiction
This Main Merchant Agreement and these General Terms and Conditions are subject to Danish law and The City Court of Copenhagen (Københavns Byret) has exclusive jurisdiction to settle any dispute arising out of or in connection with the Main Merchant Agreement and these General Terms and Conditions (including a dispute relating to the existence, validity or termination of the Main Merchant Agreement and these General Terms and Conditions).
12.6 Order of Precedence
If a contradiction is found to exist between the Main Merchant Agreement and these General Terms and Conditions, the Main Merchant Agreement has precedence.
Any notifications sent from the Merchant regarding the Main Merchant Agreement, or these General Terms and Condition are to be sent in written form to the physical address of Softpay or to the email: email@example.com with cc to firstname.lastname@example.org. Any notification from Softpay may be sent to the physical address of the Merchant or to one of the emails used by the Merchant when communicating with Softpay.
12.8 Force Majeure
Each Party is released from responsibilities and responsibility to pay damages if violation of contractual obligations or failure to meet them is caused by events of force majeure. An event of force majeure means any unusual and relevant circumstances coming to existence after the signing of the Main Merchant Agreement, that the Party cannot be expected to have considered relevant at the time of signing and that is not within the reasonable influence of the parties, or whose effect cannot reasonably have been avoided or overcome. Such events can include for example, war, pandemic, revolution, currency restrictions, legislation or regulation from authorities, the denial, seizure or expropriation of an export license, an import or export ban, a natural disaster, a serious epidemic, a suspension of public transport, telecommunications or energy distribution, scarcity of transport means general shortage of goods, a labour dispute, a strike, a fire, or other unusual events of similar effect that are beyond the influence of the Parties and errors or delays in subcontractor deliveries caused by events mentioned above. If the delay in fulfilling a contractual obligation is caused by an event mentioned above, the time period allowed for fulfilling a contractual obligation shall be extended by as much as can be considered reasonable when all relevant circumstances have been taken into consideration.