Special terms an conditions factoring

These conditions regulate the rights and obligations of the contractual partner and secupay AG Goethestr. 6, 01896 Pulsnitz (hereinafter referred to as secupay) in the processing of payments with payment guarantee, i.e. the factoring of receivables from deliveries and services, if secupay assumes the debtor risk and receivables management for the contractual partner. Insofar as these conditions do not or do not provide otherwise, the General Terms and Conditions of secupay shall apply in their current version.

secupay acquires the claims assigned by the contractual partner by means of genuine factoring and is responsible for the credit assessment of the debtors (customers of the contractual partner against whom the claim was justified), the processing of the payment in accordance with the included "Besondere Bedingungen Zahlungstransfer" ("Special Conditions for Payment Transfer"), the customer service with regard to claim management and the collection of outstanding claims from this agreement.

For the receivables assigned by way of factoring, secupay assumes the overall risk of default of the receivable, i.e. in particular the debtor risk for the receivable in accordance with the following stipulations.

The contractual partner offers secupay the sale of all receivables against its debtors arising after the time of conclusion of the contract which were and are justified by orders with one of the payment methods offered by secupay on the contractual partner's website. At the same time as the sales offer, the contractual partner assigns these receivables in their entirety to secupay (global assignment), which accepts them. The assignment takes place under the resolutory condition of a negative purchase decision by secupay. All transactions are to be carried out via secupay insofar as the contractual partner's offer to sell is not rejected by secupay.

The parties agree that secupay's acceptance of each and every offer to sell receivables made by the contractual partner depends on a sufficient creditworthiness of the respective debtor and a positive result of the cost/risk analysis to be carried out by secupay.

secupay can also make use of external credit agencies and service providers for credit checks. As a rule, the decision is made automatically by electronic means and on the basis of secupay's internal guidelines. secupay is nevertheless free in each individual case not to accept the offer to sell a receivable of the contractual partner or to do so only subject to revocation. At the latest, the crediting of the assigned amount receivable by secupay to the contractual partner shall be deemed a declaration of acceptance.

If secupay does not reject the receivable after checking the creditworthiness and the cost/risk analysis and declares no reservation and the assurances of the contractual partner and conditions of debtor risk listed in these conditions are fulfilled, secupay assumes debtor risk for the net receivable of the contractual partner against the debtor, i.e. without statutory value-added tax, insofar as the receivable exists in terms of reason and amount.

If secupay declares to the contractual partner that it accepts the offer to sell subject to revocation, secupay shall only assume debtor risk to the above extent after separate written confirmation. secupay shall send the separate confirmation of acceptance of debtor risk or its rejection or revocation of acceptance of the offer to sell receivables to the contractual partner regularly within 5 bank working days. If the contractual partner dispatches the goods or renders its service to the debtor without the textual confirmation, no assumption of debtor risk shall be made and acceptance of the offer to sell subject to reservation shall be deemed revoked.

In principle, secupay informs the debtor about the assignment of the claim. If secupay issues a text sample for the notice of assignment, the contractual partner shall also use this text unchanged in its business processes so that the assignment is disclosed as agreed.

Depending on the chosen method of payment, the contractual partner guarantees that the following information is part of each contractual invoice from the contractual partner to the debtor which constitutes the payment claim:

1. Direct debit: Notification of the assignment of the claim and collection of the claim by secupay,
2. Purchase on account: Display of the assignment of the receivable in accordance with a text sample provided by secupay, the payment rem (due date), the secupay bank details disclosed to the contractual partner and the reason for payment as well as a link or a QR code transmitted by secupay with a link to a secupay payment page. The payment term (due date) is 10 days from the invoice date. The invoice is to be issued and sent on the day the service is rendered or the goods are dispatched,
3. all other payment methods: Notification of the assignment of the claim to and processing of the payment by secupay.

The contractual partner guarantees secupay that the receivable against the debtor exists at the time of assignment and is assignable. In addition, the customer is liable for the absence of objections to the receivable. The warranty risk lies on the part of the contractual partner. The same applies to any set-offs or contract terminations.

secupay does not assume debtor risk if

1. the residential, delivery or invoice address, in case of payment methods direct debit or invoice is outside Germany,
2. the goods are dispatched to post boxes or DHL packing stations, to delivery addresses other than the billing address and/or recipients other than the order or without proof of delivery (e.g. as a letter or parcel),
3. the information given in the order is subsequently changed,
4. the receivable to be assigned is not directly against the contractual partner, but is based on the business operations of third parties,
5. the receivable to be assigned is based on gambling, lottery or similar events, auctions, erotic content, the sale of erotic items, tobacco products, alcoholic beverages, game consoles, mobile phones, computers, tablets, weapons or medication, downloads or vouchers, unless secupay has given its prior written consent to the settlement of these transactions,
6. the debtor already announces possible acceptance problems with the account or with regard to his solvency at the time the data is transmitted or to be suspected or to be otherwise known to the contractual partner,
7. the contractual partner knows or should have known before assignment to secupay that insolvency proceedings are pending against the debtor, or that the debtor has given a statutory declaration of insolvency, or that other measures of enforcement are not promising, and this could result in damage to secupay,
8. the general circumstances of the order are unusual, in particular the suspicion of fraudulent or otherwise criminally relevant conduct on the part of the customer is obvious when the circumstances are reasonable considered,
9. the contractual partner has not provided secupay with at least the following information for the credit assessment of the debtor via the specified interface standards:
   1. with private individuals: salutation, surname, first name, address (street, house number, postal code, city, country; no P.O. Box or parcel depot as e.g. DHL-Packstation), date of birth, telephone number, e-mail address and complete shopping basket,
   2. with companies or entrepreneurs: company (name of the company) including legal form, address (street, house number, postal code, city, country; no P.O. Box or parcel depot as e.g. DHL-Packstation), telephone number, e-mail address and complete shopping basket,
   3. for public institutions and all remaining legal forms: designation/name, address (street, house number, postal code, city, country; no P.O. Box or parcel depot as e.g. DHL-Packstation), telephone number, e-mail address and complete shopping basket.
10. the delivery or performance of the service does not take place within 4 weeks of secupay's acceptance of the offer to sell receivables,
11. the debtor has exercised his statutory right of revocation or a further right granted by the contractual partner to withdraw from the purchase contract,
12. the debtor has returned the goods to the contractual partner within the revocation period without declaring the revocation,
13. the debtor does not take possession of the goods or refuses to take possession of the goods and the contractual partner has received the goods back,
14. the contractual partner has agreed terms and conditions with the debtor that differ from those agreed between secupay and the contractual partner,
15. the contractual partner has not agreed any retention of title with the debtor,
16. the contractual partner becomes aware of the existence of a return debit note or a chargeback to a previously assigned receivable and the goods or services have not yet been dispatched at the time this information is received,
17. the contractual partner does not assert any claims for rescission and surrender at the request of secupay or assigns them to secupay free of charge,
18. the legal transaction underlying the receivable does not exist.

In the listed cases, secupay is also entitled without further ado to declare its withdrawal from the purchase of the affected receivable, to reclaim a purchase price already paid for the receivable and to assign the receivable back to the contractual partner. In this case, the contractual partner hereby declares acceptance of the reassignment by secupay. secupay may offset the amount of the redemption claim against other claims of the contractual partner against secupay or collect it by direct debit after payment has been made.

The aforementioned rights shall also exist for secupay if the debtor declares that he

1. has not received the goods or services,
2. the goods delivered or services rendered by the contractual partner do not correspond to the description of the contractual partner in the product description with regard to type, quality, colour, size, number of goods or services,
3. the goods have been delivered damaged or unreasonably delayed,
4. the service has been provided inadequately or not on time,
5. the debtor can declare the offsetting on the basis of a counterclaim against the contractual partner or is entitled to a price reduction or other reduction of the claim,

unless, in such cases, the contractual partner proves the delivery or service within one week of being requested to do so in writing by presenting proof of delivery or performance or can prove by means of suitable documents that the defect, the deviation or the damage either did not exist or was remedied by replacing or repairing the goods or remedying the defect in the service and the goods were delivered again or the service provided and to the extent that the receivable continues to be valid. Suitable documents for proof of delivery or performance must contain at least the following information: Copy of the invoice, date of delivery, full name and address of the recipient, signature of the recipient and complete shipment history for goods dispatched.

The contract partner is aware that payments by debtors on claims acquired and assigned by secupay can only be made with the effect of fulfilment to secupay directly. The contractual partner assures that it will do everything to ensure direct payment by debtors to secupay for such claims. If, nevertheless, payments are made to the contractual partner for claims transferred to secupay, the contractual partner shall accept these as a trustee for secupay as the trustor. The contractual partner is obliged to inform secupay of the receipt of payment within three business days. secupay will then, at its own discretion, either offset the trust amount against other claims of the contractual partner against secupay, collect it from the contractual partner's account or instruct the contractual partner to transfer it to secupay.

secupay generally pays the respective invoice amount, including VAT, less the agreed fees plus resulting VAT (= purchase price), to the contractual partner within seven banking days of secupay accepting the offer to sell the claim. Unless otherwise agreed, payment shall be made to the contractual partner once a week. In the event of the insolvency of the debtor, the purchase price shall be reduced by the VAT refund claim pursuant to § 17 Value Added Tax Act (Umsatzsteuergesetz - UStG), which the contractual partner may assert against the tax office in the event of default of the receivable. The parties agree that an illiquidity of the debtor is to be assumed if:

1. no payment by the debtor is made within 3 months of the due date of the receivable despite reminder and threat of legal action,
2. the debtor has declared insolvency or illiquidity,
3. has given the debtor’s asset disclosure or
4. insolvency proceedings have been applied for or opened against its assets.

secupay is entitled to set off any reclaim amounts resulting from the reduction in the purchase price against other claims of the contractual partner against secupay or to collect such amounts by direct debit.

If payments by the debtor to secupay are subsequently made contrary to expectations, secupay will correct the reduction in the purchase price in the ratio of the amounts received to the original purchase price and immediately pay out any resulting credit to the contractual partner.

In case the contractual partner dispatches the goods at his own risk, he commissions secupay to process the payment. Contrary to the above regulation, payment is generally made within seven banking days of receipt of the payment amount by secupay as part of the weekly payment.

In the event of payment disruptions, secupay shall collect the claims acquired within the scope of this agreement at its own expense and for its own account. secupay is entitled to assign these claims to third parties at its own discretion and at any time after acquisition of the claim or to commission third parties to collect the claims. secupay is free to choose the means of collecting the claims.

The contractual partner undertakes to submit each receivable to secupay for sale and assignment only once and to provide secupay with proof upon request that each receivable submitted was based on a transaction with the debtor.

The contractual partner is obliged to include an express retention of title in his General Terms and Conditions for the sale to debtors and to assert any claims for rescission and surrender against the debtor at the request of secupay or to assign such claims to secupay free of charge at the request of secupay.

The contractual partner undertakes to support secupay to the best of his ability and at his own expense with all measures required for the assignment and enforcement of the claims against the debtors and, in particular, to make available immediately all information relevant to the assigned receivable. Upon simple request, he shall make available to secupay within three working days all invoices, delivery notes, delivery receipts or other proofs of performance which document the receivables.

In the case of purchase on account (invoice), the contractual partner reports the dispatch of the goods immediately, but no later than the following working day, electronically via the API. This message includes:

1. The transaction number to which the shipped goods are assigned,
2. the exact date of dispatch,
3. the transaction amount (invoice amount) attributable to this shipment,
4. den Namen sowie die Sendungsverfolgungsinformation (Track & Trace-Nummer) des vom Vertragspartner beauftragten Versenders. Der Vertragspartner bevollmächtigt secupay, die Informationen zur Sendungsverfolgung einzusehen.

In the case of partial deliveries without partial invoices, secupay shall first be notified of the final dispatch with which the invoice for all partial deliveries is issued. Shipping information for previous partial deliveries shall be provided to secupay upon request.

If the contractual partner does not comply with the above obligations within one week despite being requested to do so by secupay, the contractual partner shall compensate secupay for the resulting damage. Further rights of secupay, in particular the right to terminate the contract for good cause, remain unaffected by this.