HelloBonnie has developed a solution that allows companies to provide their employees with so-called HelloBonnie smart cards ("smart cards") for use. With the smart card, companies can make tax-advantaged payments available to their employees. Employees can use these tax-advantaged withdrawals with the smart card both online and at appropriate acceptance points.
HelloBonnie is the system provider and distributor of these smart cards, which is authorised by Swan SAS, with registered office at 95 avenue du président Wilson, 93100, Montreuil, registered with the Trade and Companies Register under number 853 827 103 and registered in France by the ACPR (4 Place de Budapest CS 92459, 75436 Paris) as an electronic money institution and registered under number 17328, can be issued. Swan is represented in Germany by: Swan SAS - Zweigniederlassung Deutschland, Friedrichstraße 114 A, 10117 Berlin. Swan is subject to all regulatory obligations applicable to institutions that meet the criteria of Article L. 314-1 of the Monetary and Financial Code (2°, 3° and 5°) in France or Section 39 (1) sentence 1 of the Payment Services Supervision Act.
These General Terms and Conditions ("T&Cs") consist of three sections. Section I governs the legal relationship between HelloBonnie Technologies GmbH, Eppendorfer Baum 24, 20249 Hamburg, Hamburg District Court, HRB 181401, ("HelloBonnie") and the Company as a corporate customer ("Corporate Customer") with respect to the provision of the HelloBonnie Card Program and the issuance of the Smart Cards (these terms and conditions "Corporate Customer Terms").“). Section II sets out the terms and conditions of the partnership between HelloBonnie, Swan SAS ("Swan") and the Corporate Client with respect to the issuance of the smart cards ("Swan Terms") in addition to the Swan SAS General Account Terms of Use (these terms and conditions "Swan Account Terms of Use"“). Section III contains the General Terms and Conditions of Use applicable between the Corporate Customer and the Cardholders for the use of the Smart Card ("Cardholder Terms"). Section IV sets out the general rules and final provisions applicable to the Corporate Client Terms, the Swan Terms and the Cardholder Terms.
Conclusion of contract: The information contained on the website is subject to change and non-binding and does not constitute an offer by HelloBonnie or Swan to conclude a contract. The contract is concluded separately and in each case between HelloBonnie, Swan, corporate customers and cardholders. By sending the purchase order, the corporate customer submits a binding offer to conclude a contract with both HelloBonnie and Swan. Acceptance of the offer by HelloBonnie in its own name and on behalf of Swan will only take place after the card order has been fully checked and an invoice has been sent to the corporate customer and is also subject to the condition precedent that HelloBonnie has received full payment of the order fees as in the invoice issued to the corporate customer.
If the corporate customer and the cardholder wish to use the smart cards for the benefit of benefits in kind, gifts in kind, non-cash bonuses, recreation allowances, inflation bonuses, etc., the following information must be observed:
- Neither HelloBonnie nor Swan provide tax advice in connection with the issuance of smart cards or other services. HelloBonnie and Swan advise both corporate customers and cardholders to have the tax law issues surrounding the use of the smart card and the recognition of smart card withdrawals as non-cash benefits reviewed by a tax advisor.
- HelloBonnie and Swan accept no liability for the non-recognition of the smart card as a benefit in kind.
The following terms and expressions have the following meanings:
(1) "Applicable Provisions" means all laws, requirements and guidelines applicable to a party, in particular with regard to anti-money laundering requirements and requirements relating to the CDD (as defined below), consumer protection, data protection, relevant regulations and standards in payment transactions (in particular the Payment Card Industry Data Security Standard), the handling and issuance of electronic money, the provision of payment services and in relation to advertising activities (in any medium).
(2) "Top-up" means the transfer of funds to the respective Smart Card and the subsequent increase of this amount by the corporate customer or cardholder (then "top-up"), whereby the amount that is available to an individual cardholder when using the card.
(3) "Benefit Dashboard" means the part of the Benefit Platform in which the Corporate Customer can manage the Card Program, create Cardholders and top up the Smart Cards.
(4) "Benefit Platform" is the generic term for the Benefit Dashboard and the Benefit Wallet.
(5) "Benefit Wallet" is the part of the Benefit Platform in which the Cardholder can manage their smart card, i.e. in particular see their balance and transactions, top up and select the respective benefits.
(6) Know your Customer (KYC) and Know your Business (KYB), collectively referred to as Customer Due Diligence ("CDD"), is the verification of the identity of corporate customers, corporate bodies, beneficial owners in accordance with the Money Laundering Act ("AMLA") as well as future and existing cardholders, as required and in accordance with the applicable provisions, regulations and laws, in particular the provisions of the AMLA.
(7) "Fees" means the fees for the Card Program (as defined below), costs and commissions payable by the Corporate Customer in connection with the operation of the Card Program in accordance with the Order and in accordance with these Terms and Conditions.
(8) "Corporate Client Terms" means the terms and conditions that apply between the Corporate Client and HelloBonnie and govern the provision of the HelloBonnie Card Programme and the issuance of the Smart Cards. The Corporate Client Terms and Conditions are set out in Section I.
(9) "Corporate Account" means the Corporate Client's e-money account opened with Swan for the purpose of using the HelloBonnie Services.
(10) 'HelloBonnie interface' means the interface to the internet of the server hosting the Benefit Platform.
(11) "Cardholder" is a natural person to whom a Card is provided by the Corporate Customer in accordance with these GTC.
(12) "Cardholder Account" means the Cardholder's E-Money Account associated with the relevant Smart Card and held with Swan.
(13) "Card Program" means the entirety of the Cards provided to the Corporate Customer by HelloBonnie and all accompanying services that HelloBonnie makes available to the Corporate Customer in accordance with these Terms and Conditions (in particular for the establishment, operation, top-up and other use of the Cards).
(14) "Cardholder Terms" means the terms and conditions that apply between the corporate customer and the cardholder and govern the cardholder's use of the card. The Cardholder Terms and Conditions are set out in Section III.
(15) "Loading Order" means the request of the Corporate Customer to HelloBonnie to top up the Cards.
(16) "Swan Terms" means the terms and conditions that apply between HelloBonnie, Swan and the Corporate Client in relation to the issuance of the Smart Cards in addition to the General Terms and Conditions of Swan SAS.
(17) 'Swan Interface' means the Application Programming Interface (API) interface provided by Swan for data transmission.
Section I
Contractual relationship between HelloBonnie and the corporate customer
§ 1 Subject matter of the contract
(1) This Section I governs the contractual relationship between HelloBonnie and the Corporate Client with regard to the provision of the HelloBonnie Card Programme (as defined in § 2 para. 8) and the associated services. HelloBonnie and the Corporate Client are each referred to as the "Party" and collectively as the "Parties".
(2) To this end, HelloBonnie enables the corporate customer to conclude a contract with Swan for the issuance of smart cards on the terms agreed with HelloBonnie. The smart card is a prepaid card of the credit card organization Mastercard®, which the corporate customer can leave to the cardholders for use. The smart card does not have a credit function. HelloBonnie makes the cards issued by Swan available to the corporate customer and operates the card program (as defined in § 2 para. 8) operationally.
(3) If the corporate customer wishes to use the smart card to grant benefits in kind, the use of the smart card shall be limited in accordance with the following subparagraphs (a) and (b).
(a) The smart card can only be used by the cardholder to purchase goods and services. The smart card cannot be used to purchase foreign currency, cryptocurrencies and other money surrogates. The smart card has neither a cash payout nor a credit function. The cardholder cannot transfer funds using the smart card or from the underlying cardholder account. Participation in general payment transactions is therefore not possible with the smart card. The smart card cannot be stored as a general payment instrument. If the cardholder tops up the smart card with their own credit, this top-up serves to use the credit in a timely manner. The Cardholder Account is not intended to hold the funds on the Cardholder Account for a longer period of time. The credit balance therefore does not bear interest.
(b) The use of the smart card is at any time limited by one or both of the following restriction logics:
· Regional Setup: Regional restriction of acceptance points (all acceptance points of the Mastercard® network within the maximum of two (2) defined, spatially adjacent two-digit zip code areas).
· Acceptance Point Setup: Restriction to goods or services of a specific acceptance point with Mastercard® network acceptance, i.e. Chain of stores with individual stores in Germany or Internet shops or online / digital acceptance points with a uniform market presence.
The HelloBonnie smartcard and the credit on it can only be used if a restriction logic, i.e. allocation of purpose, has been selected before the first use. In accordance with Section III § 1 para. (4), the corporate customer leaves it to the cardholder to choose this restriction logic himself.
§ 2 Services of HelloBonnie
(1) Procurement of the Cards: HelloBonnie shall provide the Corporate Customer with the procurement and configuration of the Cards from the start of the service specified in the Purchase Order, in particular with regard to the restrictions on the possible uses of the Cards and, if applicable, the individual design of the Cards within the scope of HelloBonnie's design specifications.
(2) Dispatch of the cards: In addition, HelloBonnie, in cooperation with Swan, takes over the dispatch of the cards to the cardholder with the help of a logistics or transport service provider. The risk of accidental loss, accidental deterioration and misuse of the cards passes to the company customer when HelloBonnie or a third party commissioned by HelloBonnie hands over to the transport person.
(3) Initial performance by HelloBonnie: The cards will be set up and the cards will be shipped within the delivery period promised in the order order, depending on the individual registration of the cardholders with HelloBonnie.
(4) Provision of the Benefit Platform: HelloBonnie provides a web-based Benefit Platform for use by the Cardholders (Benefit Wallet) in accordance with this Section I. At its sole discretion, HelloBonnie may also provide a mobile application (e.g. Android or iPhone apps) to the Benefit Platform, in particular for use by the Corporate Client (Benefit Dashboard). However, the corporate customer is not entitled to access a mobile application (e.g. Android or iPhone apps).
(5) Top-up of the Cards by HelloBonnie: HelloBonnie arranges for the Cards to be topped up in accordance with the instructions of the Corporate Client within the limits specified by Swan.
(6) Further obligations: HelloBonnie's obligations are set out in this Section I. There are no further performance obligations on the part of HelloBonnie. In particular, HelloBonnie's services do not extend to the usability of the cards in technical devices, such as payment terminals.
(7) Swan may use HelloBonnie as its vicarious agent in the context of the redemption of Card Balances. This does not give rise to any obligations of HelloBonnie towards the corporate customer. In particular, the corporate customer has no claim against HelloBonnie for the exchange and payment of card balances. Any redemption claim of the corporate customer exists exclusively against Swan.
§ 3 Use of the Benefit Platform
(1) Functionalities: In the Benefit Wallet, cardholders can view their transaction history and the current card balance (including available and blocked amounts), provided that the underlying transactions have previously been transferred from the Mastercard® network to HelloBonnie. In addition, the Cardholders can use the Benefit Wallet to influence the current limitation logic for topping up or topping up and using their HelloBonnie Smartcard, in accordance with the options specified in these T&Cs.
(2) Prohibition of improper use: The permitted use of the Benefit Wallet is limited to the aforementioned purposes. The corporate customer must take appropriate measures to ensure that his cardholders do not access the Benefit Wallet improperly, but only in accordance with this § 4.
(3) No further functionalities: HelloBonnie is not obliged to provide any additional functionalities in the Benefit Wallet.
(4) Right of use:
(a) The Corporate Customer and its Cardholders are granted the non-exclusive, non-sublicensable and (with the exception to the Cardholders) non-transferable right of use of the Benefit Platform, limited to the term of this Agreement, in accordance with the following provisions.
(b) The right of use is limited to Cardholders' access to the Benefit Wallet on HelloBonnie's servers.
(c) Unless the corporate customer is expressly granted rights of use in the above, he is not entitled to them. In particular, the corporate customer and its cardholders are not entitled to use the Benefit Platform, including the source code, beyond the agreed use or to make it available to third parties for use or to make the Benefit Platform accessible to third parties other than the cardholders. In particular, it is not permitted to reproduce, sell or make available the Benefit Platform for a limited period of time – neither for a fee nor free of charge. The Corporate Client shall take the necessary precautions to prevent the use of the Benefit Platform by unauthorised persons.
(5) Availability:
(a) HelloBonnie owes an availability of the Benefit Platform on the HelloBonnie interface of 95% on a monthly average. By availability, the parties understand the possibility of using the Benefit Platform at the transfer point in accordance with the contract. HelloBonnie only owes access to the Benefit Platform via a mobile application, but not access via web-based applications (e.g. corporate client portal).
(b) The Benefit Platform shall also be deemed to be available in the event of disruptions to parts not to be provided by HelloBonnie or its vicarious agents, the technical infrastructure required for the execution of the Benefit Platform or the Internet, as well as disruptions or other events that are not (co-)caused by HelloBonnie or one of its vicarious agents and planned unavailability pursuant to paragraph (5) (d).
(c) For the avoidance of doubt, in addition to the availability of the Benefit Platform in accordance with paragraph (5) (a) and (b), HelloBonnie does not owe any other availability, in particular not the payment functionality of the Card. This is based on the Swan conditions.
(d) HelloBonnie is entitled to set up a planned unavailability of the Benefit Platform and/or the server for maintenance, maintenance, data backup and due to other work on the Benefit Platform and/or the Server. Such planned unavailability is announced to the corporate customer with at least one week's notice and should usually take place during low-usage times (Monday to Sunday between 8 p.m. and 6 a.m.). Advance notice by HelloBonnie is not required for urgent work, such as closing security gaps or maintaining functionality. During the planned unavailability, the corporate customer has no legal claim to use the Benefit Dashboard and/or the server. If the corporate customer nevertheless uses the Benefit Dashboard and/or the server during the planned unavailability, the company is not entitled to liability for defects or damages in the event of a reduction or discontinuation of services.
(6) Access to the Benefit Platform: The corporate customer and the cardholders require an internet connection to access the provided Benefit Platform (Benefit Dashboard and Benefit Wallet). Appropriate hardware is also required (e.g. internet-enabled device). The Corporate Client warrants that it will only access the Benefit Dashboard on the basis of this Section I and via the HelloBonnie interface. In addition, the corporate customer will not circumvent any security measures that HelloBonnie has taken to protect the Benefit platform and application data.
(7) Notification of defects: Furthermore, the corporate customer is obliged to notify HelloBonnie immediately of defects in contractual services, in particular defects of the Benefit Platform known to him. If the corporate customer fails to report in good time for reasons for which he is responsible, this constitutes contributory causation or contributory negligence.
(8) Blocking by HelloBonnie: In the event of a violation of the above regulations, HelloBonnie reserves the right to temporarily or permanently block the access of the corporate customer or cardholder. In the event of temporary or permanent blocking, HelloBonnie will block the access authorization and notify the corporate customer of this. Further claims on the part of HelloBonnie remain unaffected.
(9) Changes to the Benefit Platform by HelloBonnie: If HelloBonnie makes new versions, updates, upgrades or other new deliveries with regard to the Benefit Platform during the Term, the above rights and obligations shall also apply to them.
§ 4 Remuneration and Payment Modalities
(1) Card order: In return for the procurement and installation of the cards, the corporate customer undertakes to pay the remuneration specified in the order order. All prices mentioned therein are based on the requirements for the implementation of the card program, which the corporate customer provides to HelloBonnie when ordering tickets. If this information is changed, HelloBonnie reserves the right to make an appropriate recalculation. Payment for the ticket order will be made by separate invoicing by HelloBonnie after the card production has been commissioned. The remuneration is due for payment upon receipt of the invoice by the corporate customer.
(2) Card prices for new, replacement and follow-up cards: If HelloBonnie is requested by the corporate customer to issue a new card to the corporate customer or a cardholder (for whatever reason), HelloBonnie will charge the corporate customer the agreed ticket price, plus any resulting fees (e.g. shipping fees). If there is no applicable price agreement for a ticket order, the current order will apply.
(3) Loading order: Before HelloBonnie initiates a top-up of the cards, the corporate customer must have paid the full loading amount for all cards to be topped up into the corporate customer account. The top-up will be initiated immediately after Swan has received full payment and subject to unambiguous attribution of the payment to a loading order. As a rule, the top-up takes place within two working days after receipt of payment (bank terms are added).
(4) All fees specified in the order shall be subject to the legally owed value added tax, if applicable.
(5) Payment methods: All payments made by the corporate customer (cardholder credit and fees) are to be paid to the account details specified for this purpose during the order process. The corporate customer can choose between payment by bank transfer and payment by SEPA company direct debit. In the case of payment by bank transfer, the corporate customer must provide his corporate customer number as well as the respective order or invoice number so that HelloBonnie can assign his transfer to a specific card order or loading order without any doubt. The corporate customer is not entitled to interest on the amounts paid.
(6) Invoice by e-mail: HelloBonnie is entitled to send all invoices exclusively in text form (§ 126b BGB) to the e-mail address of the corporate customer provided to it.
(7) Offsetting: The corporate customer is not entitled to offset claims of HelloBonnie unless the counterclaims of the corporate customer have been legally established or are undisputed.
(8) Deviating regulations: In individual cases, the corporate customer may make deviating agreements on payment processing with HelloBonnie; these require an agreement in text form (e.g. by e-mail).
§ 5 Obligations of the Corporate Client
(1) Contact of HelloBonnie with the Cardholders: HelloBonnie is entitled to contact the Cardholders directly at any time in order to fulfil the obligations under these T&Cs, to operate the Card Program and to comply with the Applicable Terms and Regulations. The corporate customer must obtain the necessary consent from the cardholders.
(2) Access to the Benefit Wallet: HelloBonnie will provide information for each cardholder on how to log in to the HelloBonnie Benefit Wallet. The corporate customer is obliged to pass on all letters addressed to the cardholders for these purposes to the cardholders unopened.
(3) The Corporate Customer is obliged to oblige the Cardholders to comply with the Cardholder Terms and Conditions (see Section III) and in particular to comply with any restrictions on the HelloBonnie Smartcard before using the Card for the first time and to ensure that the Applicable Terms are complied with.
(4) Review of tax, duty and employment law requirements for card balances: The corporate customer is solely responsible for ensuring that the use of the card program is in accordance with all tax, duty and labor law requirements applicable to him and the cardholders. Before using the cards and passing on the cards to the cardholders, the corporate customer checks how the card balance is to be treated under tax, duty and labor law law and informs all cardholders accordingly. The corporate customer is solely responsible for ensuring that the taxes and duties to be paid for the chosen purpose are paid in full, on time and correctly to the responsible tax office.
(5) Customer Due Diligence: The corporate customer follows the CDD requirements set by HelloBonnie. This includes conducting the CDD identification check on the corporate customer and, as required, on cardholders prior to the first use of the card, storing the records of these CDD checks, transmitting these records to HelloBonnie upon request, training employees to comply with CDD requirements as appropriate, and reporting suspicious activity in accordance with these procedures.
(6) Obligation to cooperate: The corporate customer will take into account the interests of HelloBonnie. He undertakes to immediately provide HelloBonnie with all information necessary for the implementation of the Card Program and to assist HelloBonnie in complying with legal requirements in accordance with this Section I. In particular, upon request by HelloBonnie, the Corporate Client shall immediately provide correct and comprehensive information on the CDD or other breaches of duty and, if necessary, substantiate all communications to a reasonable extent.
(7) Optional Custom Card Layout: If an individual card layout has been commissioned by the corporate client, the corporate client must provide HelloBonnie with the files, information and documents resulting from HelloBonnie's design specifications for the design of the card layout. The desired card layout is only commissioned and produced after review and approval by the corporate customer.
(8) Transaction history: HelloBonnie will make the transaction history available to cardholders via a mobile app, website or similar media. The corporate customer ensures that the cardholders know how to check their transaction history so that any suspicious transactions (such as card misuse) are detected immediately and the corporate customer can inform HelloBonnie immediately.
(9) Destruction of Cards: The Corporate Client will only destroy Cards if he receives an explicit instruction to do so from HelloBonnie. If the corporate customer or a cardholder destroys a card without the corporate customer being asked to do so by HelloBonnie, the corporate customer will bear the cost of a replacement card.
§ 6 Copyright, trademark and other intellectual property rights
(1) The Corporate Client is not entitled to use logos, graphics, website content, software, texts, databases or other content of which HelloBonnie is the rights holder, in whole or in part (e.g. by copyright, trademark, patent, design or utility model law), unless the Corporate Client is expressly permitted to do so within the framework of this Section I or is necessary for the contractual use of the Cards. The rights of third parties remain unaffected.
(2) If the corporate customer provides drawings, samples or other templates for the individualization of the card or other goods, the corporate customer shall have the sole obligation to check whether copyright, trademark or other property rights of third parties are violated as a result. If the use of the corporate client's templates leads to an infringement of third-party property rights, the corporate client undertakes to indemnify HelloBonnie against all claims for damages and to reimburse any attorney's fees and other costs for the defence against the out-of-court and judicial claims against HelloBonnie by third parties.
§ 7 Term, Start of Services and Termination
(1) The contractual relationship begins with the signing of the purchase order and is concluded for an indefinite period of time. A minimum contract term can be stipulated in the order and applies accordingly in the contractual relationship.
(2) HelloBonnie shall commence the provision of the services described in these GTC at the start of the service specified in the Purchase Order.
(3) HelloBonnie and the corporate customer are each entitled to terminate the contractual relationship without giving reasons with a notice period of six (6) months. If the order provides for a minimum contract period, termination is possible at the earliest at the end of this minimum contract period.
(4) The right to terminate the contract without notice for good cause remains unaffected. HelloBonnie is entitled to terminate the contract without notice if, in particular:
(a) there is a material breach of contract on the part of the corporate customer, e.g. the smart card is used inappropriately; improper use exists if it is used for purposes other than those provided for in these GTC;
(b) any authority, authorization or license is withdrawn or any law or regulation comes into force as a result of which this Agreement can no longer be executed in the manner contemplated; or
(c) the Corporate Client or its agents become the subject of a regulatory investigation or proceeding (including criminal investigations or legal proceedings) and this could adversely affect HelloBonnie's reputation, goodwill or economic interests;
(d) the corporate client breaches its obligations to avoid fraudulent or corrupt practices under section 9 (2).
Extraordinary termination due to or in connection with a breach of duty is generally only possible after a prior written warning with a reasonable deadline of not less than 14 working days for remedy. Deviating statutory provisions remain unaffected, in particular the determination of a deadline for remedial action and a warning are dispensable if special circumstances exist that justify immediate termination after weighing up the interests of both parties.
(5) Notices of termination must be in text form (§ 126b BGB; e-mail is sufficient). Termination of this contract shall always also take effect with effect for the agreement with the issuer (Section II).
(6) After termination of this contract, for whatever reason:
(a) the corporate customer is no longer entitled to order new cards or top up existing cards. Card holdings held or received by the corporate customer after termination must be returned to HelloBonnie immediately or disposed of in accordance with HelloBonnie's instructions. Until returned to HelloBonnie, the cards ordered up to the time of termination are subject to the provisions of these T&Cs;
(b) HelloBonnie will commence the discontinuation of the Card Program ("Settlement") and will only continue to operate the Card Program for all Cards in circulation and active at the time of termination until either the balances on such Cards have been fully exhausted or have expired;
(c) the corporate customer is responsible for ensuring that cardholders continue to be bound by the cardholder terms of use during processing;
(d) the Corporate Client shall remain liable for the payment of all fees for Card Programmes to HelloBonnie until the last Card has been settled;
(e) the provisions of this Agreement relating to the operation of the Card Program and the relationship with Cardholders shall survive termination and notwithstanding termination.
(7) Termination of this Agreement shall not affect any prior breach or liability.
§ 8 Liability and exclusion of liability
(1) In the event of intent or gross negligence, the parties shall be liable to each other without limitation for all damages caused by them and their legal representatives or vicarious agents.
(2) In the event of slight negligence, the parties shall be liable without limitation in the event of injury to life, limb or health.
(3) In all other respects, a party shall only be liable to the extent that it has violated a material contractual obligation. In any case, essential contractual obligations are the main performance obligations as well as other obligations that are of particular importance for the achievement of the contractual objective, as well as all those obligations which, in the event of a culpable breach, may lead to the achievement of the purpose of the contract being jeopardised. In these cases, liability is limited to compensation for the foreseeable, typically occurring damage. Paragraphs (1) and (2) shall remain unaffected.
(4) Except in the cases of paragraphs (1) and (2), HelloBonnie shall not be liable to the Corporate Client for any damages arising from:
(a) Unusual or unforeseen circumstances beyond HelloBonnie's control, the consequences of which HelloBonnie could not have avoided despite all efforts (e.g. in the event of a force majeure event).
(b) All costs incurred by HelloBonnie in connection with the delivery, return and any new delivery of the Cards that are attributable to a breach of the Corporate Customer's duty to inspect and complain under § 5 para. (4).
(c) If a merchant or other counterparty rejects or is unable to accept the Card when using the Card.
(d) Compliance with applicable legal or regulatory requirements, including but not limited to tax and social security requirements; In this respect, HelloBonnie shall not be liable for any tax refund, tax payment, tax rebate or other tax payments arising out of or in connection with the use of the Card Program by the Corporate Customer.
(e) matters expressly excluded or limited elsewhere in this Agreement.
(5) Subject to paragraphs (1) and (2), HelloBonnie's total liability to the Corporate Client arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall be limited to EUR 25,000.
(6) Unless otherwise applicable by law or contractually agreed, HelloBonnie shall not be liable to the Cardholder and/or the Corporate Customer for any loss of the Card balance in the event of a loss of the Card.
(7) Liability under the Product Liability Act remains unaffected.
(8) If the corporate customer wishes to use the HelloBonnie smart card for the benefit of non-cash benefits, it is the sole responsibility of the corporate customer to check whether the requirements for this are met. HelloBonnie does not provide tax advice. HelloBonnie assumes no liability for damages resulting from the non-recognition of the HelloBonnie Smartcard as a benefit in kind within the meaning of § 8 para. 2 EStG. It is recommended to consult a tax advisor and to obtain information about the appeal.
§ 9 Integrity and Anti-Corruption
(1) HelloBonnie is committed to preventing and combating fraud and corruption in accordance with the law and expects all business partners to strictly comply with the applicable laws.
(2) Against this background, the corporate client is prohibited from engaging in any fraudulent or corrupt practices in the context of its business relationship with HelloBonnie. The Corporate Client shall take all reasonable measures to ensure that its officers, employees, subcontractors or other third parties under its control comply with the foregoing obligation. The Corporate Client is also obliged to inform HelloBonnie immediately of any conflicts of interest or events of which it becomes aware and which could result in it receiving an unjustified financial or other advantage in connection with the business relationship with HelloBonnie or in general violating applicable laws in this respect.
(3) Any breach of the obligations set out in paragraph (2) constitutes good cause that entitles HelloBonnie to terminate this Agreement extraordinarily in accordance with § 9 (3). Without prejudice to this, HelloBonnie reserves the right to assert claims for damages.
Section II
Terms of partnership with HelloBonnie
§ 1 Preamble
(1) The terms and conditions of the partnership between Swan and HelloBonnie (Swan Terms) govern HelloBonnie's participation in the maintenance of the Corporate Client Account and the main payment services offered to the Corporate Client and opened by the Corporate Client with Swan.
(2) The Swan Terms and Conditions are in addition to the General Terms and Conditions of Use of Swan SAS and set out the terms and conditions under which the Partner assists the Corporate Client and/or Swan in the preparation and execution of transactions on its Corporate Client Account.
§ 2 Services
The corporate client is aware that Swan and HelloBonnie have entered into a partnership agreement. In this context, the Corporate Client accepts and agrees that HelloBonnie may be required to perform the following operations as a technical service provider:
· Query of the corporate customer account.
· Submitting information to Swan for the purpose of opening the corporate account.
· Preparation of ticket orders.
· Preparation of transfer and debit orders.
· Preparation of internal debits where the creditor is the corporate customer and where the debtors are other corporate customers of Swan.
· Preparation of the topping-up of the corporate account by the corporate client.
· Preparing for the refund of the balance of the corporate account
· Technical transmission of requests for objections to payment transactions.
§ 3 Opening of the corporate customer account and cardholder account
(1) Prior to commencing the use of the HelloBonnie Services, the Corporate Client shall open a Corporate Client Account with Swan. Before the first use of the smart card, a separate cardholder account is created for each cardholder as a sub-account to the corporate customer account with its own IBAN.
(a) If HelloBonnie has an IOBSP or commercial agent mandate, the Corporate Client may submit to Swan the documents required to open the Corporate Client Account via the HelloBonnie interface. The corporate client guarantees the absolute accuracy and completeness of these documents.
(b) If HelloBonnie does not have an IOBSP status, the Corporate Client must submit the documents required to open the Corporate Client Account via the Swan interface.
(2) The opening of the Corporate Client Account is subject to the acceptance by the Corporate Client of (i) the Swan Account Terms of Use, (ii) Swan Terms and Conditions and (iii) the Corporate Client Terms.
§ 4 Use of the Corporate Client Account and the Services Offered by HelloBonnie
(a) Ordering the Card: The Corporate Client may ask HelloBonnie to prepare a Card order. This request is transmitted to Swan and confirmed to the corporate customer via the Swan interface. If a physical card is ordered, Swan will notify HelloBonnie of the shipment of the physical card and send it directly to the corporate customer or cardholder.
(b) Card Payments: If a Cardholder makes a payment using a Card, the transaction will first be reviewed by Swan and, if successful, authorized. Before the transaction is authorized, HelloBonnie may propose to Swan to decline the authorization. The corporate customer conditions are decisive for this.
(c) Making SEPA Credit Transfers: Credit transfer orders from corporate clients can be placed via the HelloBonnie interface. HelloBonnie provides technical support for the transfer and forwards it to Swan as a messenger. The verification and subsequent confirmation of the transfer is in no case carried out by HelloBonnie, but by Swan via the Swan interface. Before a transfer order is authorized by Swan, HelloBonnie may suggest to Swan to reject the authorization of the transfer order before the transaction is executed. The HelloBonnie terms and conditions are decisive for this. Once the transfer order has been executed, Swan will inform HelloBonnie.
(d) SEPA Direct Debits: Before a Direct Debit is authorized by Swan, HelloBonnie may propose to Swan to decline the authorization of the Transfer Order before the transaction is executed. The HelloBonnie terms and conditions are decisive for this. Swan HelloBonnie will inform you about the receipt of the direct debit. HelloBonnie informs the corporate customer accordingly.
(e) Top-up of the Cardholder Account: If the Corporate Client wishes to top up a Cardholder's account, HelloBonnie may technically prepare the Card Payment Order with Swan by compiling and transmitting to Swan the information necessary to execute the order, including the amount to be topped up.
(f) Topping up the Cardholder Account: The Cardholder is free to top up the amount made available by the Corporate Client in the Cardholder Account with their own funds.
(g) Refund of Cardholder Account Balance: If the Corporate Client wishes to receive a refund of all or part of the available balance on the Cardholder Account, the Corporate Client may submit a request to HelloBonnie, who will make the arrangements and forward this request to Swan as a messenger for technical support. If the Cardholder has topped up their Smart Card with their own funds and wishes to receive a refund of the corresponding balance on their Cardholder Account (except for the credit provided by the Corporate Customer), this credit will be transferred to the reference account from which the Cardholder last topped up their Cardholder Account.
(h) Internal Direct Debit Mandate: By accepting the Swan Terms, the Corporate Client agrees and will separately instruct HelloBonnie Swan to provide the technical information required for direct debit collection by means of a separate payment instruction as a so-called standing order. By means of the Standing Order, the Corporate Client authorises Swan in advance to debit his Corporate Client Account in accordance with HelloBonnie's instructions. The amount of the payment transactions carried out in this context will be communicated to the corporate customer by Swan or by HelloBonnie in the form of a payment plan. The terms and conditions for handling internal direct debits, including the ability for the corporate client to receive a refund, are set out in the Swan Account Terms of Use.
§ 5 Disputes
(1) To object to a payment transaction, the corporate customer can contact HelloBonnie.
(2) HelloBonnie will then refer this dispute to Swan for processing in accordance with the Swan Account Terms of Use.
(3) Swan will then inform the Partner of its decision regarding the objection on the part of the Corporate Client and, if necessary, refund the disputed amount.
§ 6 Term and Termination
The Swan terms are included indefinitely. They can be terminated at any time by the corporate client or Swan without the need for justification. In this case, the Corporate Client Account can be reached directly at the following address, in accordance with the General Terms and Conditions of Use of the Corporate Client Account.
Section III
HelloBonnie Smartcard Terms of Use for Cardholders
The cardholder terms and conditions apply to the legal relationship between corporate customers and cardholders. By using the card, the cardholder accepts the cardholder terms and conditions vis-à-vis the corporate customer.
§ 1 Handling of the card and permitted use
(1) Ownership of the Cards: The Card remains the property of Swan. It is not transferable. Cardholders do not acquire any other rights to a Card other than the scope expressly stated in these Cardholder Terms.
(2) Authorisation to dispose of credit: The corporate customer decides on the order and provision of the cards. The top-up of the card's non-cash benefits is carried out by the corporate customer. The cardholder is free to load additional credit onto the card by transferring funds to their individual IBAN from another account outside Swan if necessary (top-up). The Corporate Client grants the Cardholder the exclusive and unrestricted authority to dispose of the Card balance during the validity of the Card and in accordance with these Cardholder Terms. The cardholder is not entitled to an exchange of non-cash benefits back into money. The cardholder can only exchange credit that he has loaded onto the card himself. In the case of cards that are not renewed, there is no entitlement to use the cards or payment of the balance to Swan or HelloBonnie after the expiry of the validity.
(3) Basic function: The card is a prepaid-based Mastercard® that can be topped up by the corporate customer or cardholder and used exclusively by the authorized cardholder in accordance with the cardholder conditions. The cardholder can use the balance on the card to pay for goods and/or services.
(4) The use of the smart card is subject to the restrictions specified in Section I § 1 subsection (3). In the application of the Benefit Wallet, the cardholder can set and see under which restriction logic the provided smart card can be used. The smart card is technically configured in such a way that it only works according to the selected restriction logic (as described in Section I § 1 para. (3)). The corporate customer leaves it up to the cardholder to choose this restriction logic himself.
(5) Limitations of functions: Excluded is any cash withdrawal and transfers by the cardholder. Swan also reserves the right to further restrict the usability of the card.
(6) Credit:
(a) Only the amount of credit loaded onto the card may be used. A debit balance on the card is not allowed.
(b) It is the responsibility of Swan to determine, at its sole discretion, the maximum balance per card, the maximum load amount per load, the maximum loading frequency and the maximum number of transactions within a given period and to change it at any time. The corporate customer informs the cardholder in good time about the currently applicable loading amounts, the loading frequency and the maximum number of transactions.
(7) Validity: The card is valid until the end of the month printed on the card. After the expiry of the validity period, any credit still on the card can no longer be used to purchase goods and/or services. Upon expiry of its validity, the cardholder may no longer use the card and must return it to the corporate customer immediately and without being asked. The Corporate Client may, at his sole discretion, decide to renew the Card and transfer the remaining balance to the new Card, which is subject to the same restrictions as the previous one.
(8) Data protection: The collection and use of data in relation to the use of the smart card is carried out in accordance with the HelloBonnie data protection notice, available at www.hellobonnie.de/en/legal/privacy-notice , insofar as HelloBonnie is responsible for the processing of the personal data.
(9) If the corporate customer has a legitimate interest, the corporate customer is entitled to find out the amount of the card balance from Swan.
§ 2 Use of the Benefit Wallet
The use of the Benefit Wallet by the cardholder is governed by Section I § 3 of the Corporate Client Terms.
§ 3 Safety Regulations and Reporting Obligations
(1) Authorization and authentication: The method used to authorize transactions and authenticate the cardholder depends on the card function used (e.g. contact-based, contactless or online payment). Once a transaction has been authorised, it can only be withdrawn or cancelled in exceptional cases and only by the corporate client.
(a) Each contact-related transaction is generally authorised and authenticated by the respective cardholder by entering a PIN. Swan provides each cardholder with a personal PIN via HelloBonnie as a messenger.
(b) Swan shall be entitled to permit other methods of authorization and authentication; this applies in particular to contactless payment functions and online payments. If a contactless payment function has been activated by Swan, the cardholder can make transactions up to a maximum amount defined by Swan (per transaction or per day) without additional authentication by holding the card in the immediate vicinity of the receiving device of the acceptance point. To authenticate online payments, the system provider may require additional authentication features (e.g. SMS to a mobile phone number stored for you).
(c) Swan is entitled to adapt the procedures for authorizing a payment and authentication at any time over time to the legal requirements, the state of the art and other applicable regulations. HelloBonnie will inform the cardholder by appropriate means about the applicable authorization and authentication procedures.
(3) Storage of the card: The cardholder is obliged to keep the card safe and with special care in order to prevent it from being lost or misused. In particular, the card may not be kept unattended in the motor vehicle or at the workplace. In addition, the PIN must be kept secret by the cardholder; in particular, the PIN must not be noted on the card. The cardholder must take all reasonable precautions to protect authentication features from unauthorized access. Finally, the access data and passwords for the Benefit Wallet must be kept secret and must not be passed on to third parties.
(4) Obligation to report (blocking notice):
(a) Loss or Theft: The Cardholder is obliged to notify both the Corporate Customer and HelloBonnie (by email to info@hellobonnie.de) immediately of the loss or theft of the Card or PIN.
(b) Unauthorized Use: The Cardholder is also required to immediately notify the Corporate Customer and HelloBonnie of any concerns regarding the security of the Card, misuse or other unauthorized use of the Card.
(c) Monitoring of Transactions Made: Furthermore, the Cardholder is obliged to monitor the transactions made to an appropriate extent and to immediately report suspicious transactions that indicate use of the Card not authorised by the Cardholder to the Corporate Client and HelloBonnie. HelloBonnie will provide the Cardholder with the transaction history via a mobile app, website or similar media for this purpose. HelloBonnie ensures that the cardholder knows how to check the transaction history so that suspicious transactions, in particular misuse or other unauthorized use of the card, can be quickly detected.
(d) Monitoring of planned transactions: If special authentication procedures are used in accordance with paragraph (2) (b), in particular for online payments, the cardholder must check that the transaction data transmitted for authentication (in particular payment amount, date) matches the data intended for the transaction before authorisation. If discrepancies are detected, the cardholder is obliged to report the suspicion of misuse to the corporate customer and HelloBonnie and, if possible, to cancel the transaction.
(5) Destruction of the card: A card may only be destroyed if the cardholder has been requested to do so by the corporate customer or HelloBonnie. If the Cardholder has destroyed a Card other than in accordance with these Terms of Use, or if the Card has been destroyed due to negligence, the Cardholder will be responsible for the cost of any replacement Card(s).
§ 4 Unauthorized Use, Liability and Damages
(1) Blocking of Cards: Swan has the right to temporarily or permanently suspend, restrict or refuse to issue a new Card ("Actions") if Swan suspects that a Card is being used in an unauthorized or fraudulent manner, or that a Card has been lost or stolen. If Swan takes any of these actions, HelloBonnie will, if possible, give the Corporate Client advance notice or, failing that, inform the Corporate Client of the reasons for the action immediately after the action. This does not apply if the provision of information is opposed by legal reasons or security interests.
(2) Liability: In the event of non-contractual use of the card, in particular in the event of any misuse, any unlawful act, unauthorised use of access data and/or passwords, violation of statutory provisions and regulatory provisions, the cardholder shall be liable without limitation to the extent permitted by law for any culpable conduct, i.e. also for any case of negligence. Liability includes all claims for compensation, such as damages in general, interest, appropriate lawyer's fees for proper representation, court costs, settlement payments and/or other consequential damages.
(3) Liability for unauthorized cash withdrawals: Technical settings prevent cash withdrawals. The attempt to withdraw cash with the card, whether successfully or unsuccessfully, whether directly or indirectly, is not permitted. The cardholder is liable for any damage resulting from this.
§ 5 Termination and Cancellation
(1) Right of termination: The cardholder may terminate the contractual relationships on which the cardholder terms and conditions are based with the corporate customer at any time. In this case, the cardholder loses the right to use the card.
(2) Right of termination of the corporate customer: The corporate customer has the right to terminate the contractual relationships on which the cardholder terms and conditions are based with a notice period of one month to the end of the card's validity.
(3) The right to extraordinary termination shall remain unaffected for both sides.
(4) Return of the card(s): Upon the effective date of termination, the cardholder may no longer use the card provided to him and must return it to the corporate customer immediately and without being asked.
(5) Effect of termination of other contractual relationships with the Corporate Customer: If the other contractual relationships between the Cardholder and the Corporate Customer are terminated (in particular termination of the employment contract or partner agreement), the Corporate Customer may request the Cardholder to return the Card or give the Cardholder the opportunity at its sole discretion to continue using the Card in order to keep the remaining balance on the Card. of the card until the expiry of the validity period or specify that the balance on the card is no longer valid. If the Cardholder has the opportunity to continue to use any remaining credit, the Cardholder undertakes in any case to use up the remaining credit on the Card in full until the expiry of the validity period.
Section IV
General provisions and final provisions
§ 1 Data protection
The collection and use of data in relation to the use of the smart card is carried out in accordance with the HelloBonnie Privacy Notice, available at www.hellobonnie.de/datenschutzhinweise, insofar as HelloBonnie is responsible for the processing of the personal data.
§ 2 Obligation of confidentiality
(1) Confidential information, regardless of its form, means, in addition to the information expressly designated as "confidential", any fnancial, technical, technological, economic, strategic, legal, tax, business and business information of a party which is disclosed to the other party in the course of the implementation of the Card Programme in accordance with this Section I and in which there is a legitimate interest in the There is an interest in secrecy.
(2) Information shall not be considered confidential if it was already public knowledge at the time one of the parties became aware of it or subsequently became public knowledge without a breach of this Agreement or confidentiality obligations of authorized persons.
(3) In case of doubt, information disclosed to one of the parties shall be treated as confidential until both parties have been mutually agreed.
(4) Each party shall remain the "owner" within the meaning of Section 2 No. 2 of the Trade Secrets Act of the confidential information disclosed to the other party within the scope of this Section I and shall retain all rights to use and exploit such information, unless otherwise agreed.
(5) Each party will keep the other party's confidential information confidential and use it only in connection with the purposes specified in this Section I. Neither party shall be entitled to use confidential information, including information relating to Cardholders, for any other purpose other than the performance of this Agreement and compliance with the Applicable Terms.
(6) Each party will not disclose or otherwise make available the Confidential Information to third parties who are not authorized persons and will take appropriate confidentiality measures to protect the Confidential Information from access by third parties. This includes, in particular, suitable technical and organizational security measures in accordance with Art. 32 DSGVO. In order to always be able to guarantee an appropriate level of security of processing, the parties will regularly evaluate the implemented measures according to the state of the art and make adjustments if necessary.
7. Notwithstanding the foregoing, the Parties shall be entitled to disclose Confidential Information if they are required to do so pursuant to a court or administrative order or under the Applicable Regulations.
(8) Each party shall refrain from commercially exploiting or imitating the confidential information disclosed to it in the context of this Agreement in any way outside the purpose of this Agreement (including by way of so-called "reverse engineering") or from having it exploited or imitated by third parties and, in particular, from applying industrial property rights – in particular trademarks, designs, patents or utility models.
§ 3 Notifications
(1) All communications to the corporate customer or cardholder shall be made in German or, if necessary, English and shall be in text form (§ 126b BGB; e-mail is sufficient).
(2) If the corporate customer or cardholder has any enquiries regarding the card programme, he or she can contact HelloBonnie by telephone or e-mail (info@hellobonnie.de). HelloBonnie will process the request as soon as possible. HelloBonnie will communicate with the Corporate Client in a variety of ways, including by email, post, telephone and WhatsApp; by means of the contact details provided by the corporate customer in the purchase order.
§ 4 Changes
(1) Rule: HelloBonnie is entitled to amend provisions of these T&Cs in accordance with this paragraph without giving reasons, provided that this change does not lead to a restructuring of the contractual structure as a whole. This applies in particular if the amendment is necessary to eliminate difficulties in the performance of the contract due to regulatory gaps that arose after the conclusion of the contract. Except in cases of paragraph (2), HelloBonnie will inform the Corporate Client of planned changes to these GTC at least ten (10) business days in advance in text form (§ 126b BGB; e.g. by e-mail). The planned change will take effect after the express consent of the corporate customer.
(2) Exceptional case: If it is
(i) there are unforeseeable changes in the Applicable Regulations, official practice or case law that require an immediate adjustment of the Card Program (in particular tax and labor law changes), or
(ii) the proposed change is purely linguistic or design changes,
HelloBonnie shall exceptionally be entitled to amend the provisions of these T&Cs even within a shorter period of time than specified in paragraph (1), provided that such amendment takes due account of the interests of both parties. In this case, HelloBonnie will inform the Corporate Client of the changes in advance, stating a reasonable period of time for objection under the circumstances and stating the reasons for an immediate adjustment of the Card Program. If the corporate customer does not declare his objection within this period, this is considered acceptance of the change by the corporate customer. If the corporate customer objects to a change, this is considered a termination of this contract by the corporate customer.
§ 5 Final Provisions
(1) Invalidity of individual clauses: If parts of the GTC are inadmissible or are found invalid by a court or supervisory authority, the remaining provisions remain valid. The invalid provision shall be replaced by a valid one that comes as close as possible to what is economically desired by the respective parties.
(2) Ancillary provisions and deviating agreements:
(a) There are no oral ancillary agreements outside the respective contract.
(b) General terms and conditions of the Corporate Client deviating from the GTC shall not apply to the relationship between the parties, unless these have been expressly confirmed by HelloBonnie in text form.
(c) The applicable Agreement establishes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all other terms and conditions, as well as any prior or ancillary agreements, negotiations, letters of intent and representations. Excluded from the above priority of application are any deviating individual contractual agreements that the parties have concluded at least in text form. These take precedence over these T&Cs.
(3) Applicable law and place of jurisdiction: The GTC, the respective underlying contracts and any disputes and claims arising therefrom or in connection with the subject matter of the contract are subject to German law. The place of jurisdiction for all legal disputes between HelloBonnie and the corporate customer arising from or in connection with the GTC or the respective underlying contract is, to the extent permissible, Hamburg.