Last Updated: March 29, 2019
Capitalized terms not defined in the body of this Agreement are defined in the glossary at the end of the Agreement.
The Merchant Services are a web-based payment processing service by which QUID serves as an agent for Merchant to receive payments from Users on behalf of Merchant. The Services also include collecting and providing information related to User engagement with Merchant Content.
So long as Merchant is not in breach of this Agreement, Merchant shall be granted a unique and private Account accessible through the Services. The Account shall be a record of Merchant Transactions and Fees. QUID shall provide Merchant with access codes for the Account. Merchant shall not disclose such codes or permit any third party to use them on penalty of forfeiting use of the Account. Merchant assumes full responsibility for the use of its Account and the access codes thereto and shall indemnify QUID for any and all claims, losses or other liabilities arising therefrom. The Account will enable Merchant to indicate certain preferences and select certain features of the Merchant Services; all such selections, that are permissible hereunder, shall be deemed incorporated into this Agreement.
QUID grants Merchant a non-exclusive, non-transferable, non-sublicensable, limited license to use the APIs and associated user guides solely as required to use the Merchant Services (the “Integration”). By accessing the Integration, Merchant agrees that Merchant will only access the APIs by the means described in the documentation of the APIs. Merchant agrees that Merchant will not attempt to circumvent any limitations on Merchant’s use of the Integration or reverse engineer the APIs without QUID’s express consent. By using the APIs, Merchant does not acquire any ownership rights in the APIs or the content that is accessed through the APIs. All rights and licenses granted to Merchant in the APIs and Integration shall terminate automatically upon termination of this Agreement or any Merchant Services to which the rights and licenses relate.
Merchant must use commercially reasonable efforts to protect any personal information that Merchant collects through the APIs and comply with all applicable privacy laws.
QUID reserves the right to change or temporarily suspend Merchant’s access to the APIs.
QUID may monitor the use of the APIs to improve them and to verify Merchant’s compliance with this Agreement.
With the exception of the foregoing limited license nothing in this Agreement shall result in the transfer of any Intellectual Property Rights from QUID to Merchant or any third party.
It is forbidden for a Merchant to use the Merchant Services to, directly or indirectly, knowingly or unknowingly assist in any illegal activity or any Prohibited Activity (all of which are listed below in the Glossary).
The Persons on the following lists or who meet the criteria indicated below are prohibited from using the Merchant Services:
(i) United Nations Consolidated Sanctions List;
(ii) United Kingdom Financial Conduct Authority List of Prohibited Individuals;
(iii) Canadian Anti-Terrorism Act, Listed Entities;
(iv) Hong Kong Monetary Authority List;
(v) Sky Net Wanted published by the Chinese government;
(vi) U.S. Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN);
(vii) Persons who are less than 18 years of age; and
(viii) Persons, or their Affiliates who have been terminated by QUID for cause.
Subject to the limitations of the Integration, preferences selected by QUID in the Account for Merchant Services, Transaction Limits and Merchant operation of the Merchant Site, Users shall be able to indicate that they wish to make an individual payment Transaction to Merchant in a small specific amount. As between Merchant and User, such payments shall be deemed to be subject to an Invoice by Merchant to User in the amount thereof. As agent of Merchant, QUID shall accept Transaction payments on Invoices of Merchant.
Given that most User Transaction payments are very small, Users shall actually pay for their Transactions only when their Transactions have reached the agreed to specified minimum dollar value thereof (the “User Payment Threshold”), as determined by QUID and indicated on the Site. Where a given User has not reached their User Payment Threshold, QUID is under no obligation to collect funds from User or settle the corresponding amounts to Merchant. Merchant acknowledges that a single instance of payment by a User may, at the discretion of QUID, represent payment received by QUID on behalf of not just the Merchant, but instead, on behalf of multiple merchants whose funds are comingled in a single User-facing Transaction.
QUID has retained the services of a secure third party gateway and payment processor to collect and store credit or debit card information of Users (“Cardholder Data”). As and when Users wish to carry out Transactions, Cardholder Data shall be used to perform Transactions. QUID collection and use of Cardholder Data, as it relates to Transactions, is as an agent of Merchant under this Agreement.
When a Merchant wishes to receive payment through the Merchant Services, the Merchant hereby appoints QUID as its agent for the purposes of: (i) presenting Invoices to Users of the Merchant; (ii) receiving User Transaction payments, as agent of Merchant; and (iii) issuing Receipts to Users. Merchant hereby instructs QUID to issue Invoices, accept Transactions and issue Receipts through the Merchant Services, in the amounts specified by the Merchant through Account, and the Merchant agrees that QUID is acting on behalf of the Merchant in its carrying out of the foregoing and shall honor the terms of each Invoice, Transaction and Receipt as if they were carried out by the Merchant itself. QUID reserves the right to suspend or modify some or all of the Merchant Services without prior notice or consent of Merchant.
Most individual Transactions are so small, that the fees to settle them exceed the value of the Transaction. Consequently, Transaction settlements to Merchant shall occur only when Merchant is owed one hundred dollars ($100) (the “Settlement Threshold”) or more, as calculated by QUID and subject to the Fee Schedule. Subject to the limitations set out herein, QUID shall settle Transaction funds to the Merchant Deposit Account on the schedule indicated in the Account, less Fees and other amounts owing by Merchant hereunder. QUID reserves the right to adjust the Settlement Threshold on notice through the Account. QUID shall be under no obligation to settle any Transaction funds to Merchant that QUID has not itself received. QUID will not settle Transaction funds to any recipient other than Merchant.
Settlement to Merchant shall be made once the Merchant’s Account has been verified by QUID. In the event that a Merchant Account has not been verified, and the Merchant Transaction settlement reaches $1000, QUID may at its discretion charge a non-verified Merchant a monthly non-verification fee as outlined in the Fee Schedule and disable Transactions for said Merchant. The monthly non-verification fee may be charged to the Merchant until verification has occurred or until the Merchant Transaction settlement is $0, whichever occurs first.
Despite the delay between payment by a User and settlement to Merchant, Merchant shall release all Merchant Content to a given User as of when they first make payment and not as of that later time when Merchant receives the corresponding settlement.
QUID reserves the right to acquire User funds through a third party payment processor, as a sub-agent of Merchant in receipt of payments from Users for the benefit of Merchant.
Settlements to Merchant hereunder shall be to the Merchant Deposit Account as per the PAD Authorization set out below, by cheque to the Merchant or by such other means as the parties may agree upon.
QUID Regulatory Status
QUID is not a bank, money transmitter or other money services business. QUID is a payment processor for Invoices of the Merchant and acts as agent of Merchant in the receipt of Transaction payments of Invoices by Users pursuant to the terms of this Agreement. Funds received by QUID are not insured by QUID or any third party, except the Canadian Deposit Insurance Corporation or the Federal Deposit Insurance Corporation in the United States, to the extent that an ordinary commercial bank account benefits from this type of insurance. QUID reserves the right to monitor use of the Services to ensure compliance with this Agreement. If QUID determines that Merchant is not in compliance with this Agreement, QUID reserves the right to take appropriate action including, but not limited to, assessing additional Fees or suspension or termination of the Account. Merchant acknowledges that such monitoring of use may include determining whether or not the Services are accessed under the account from multiple IP addresses, as well as noting excessive use or other irregularities.
Merchant Release of User on Payment to QUID
MERCHANT AGREES THAT ON QUID RECEIVING A PAYMENT TRANSACTION FROM A CUSTOMER OF THE MERCHANT, AS OF THE RECEIPT BY QUID OF THE AMOUNT OF THE TRANSACTION, THE CUSTOMER IS THEREBY RELEASED FROM ANY LIABILITY TO THE MERCHANT IN RESPECT OF SUCH AMOUNT PAID AND ENTITLED TO THE MERCHANT CONTENT OR SERVICE IN QUESTION. CUSTOMER OF THE MERCHANT IN EACH TRANSACTION IS NAMED AS A THIRD PARTY BENEFICIARY UNDER THIS AGREEMENT WITH THE MERCHANT SO THAT THE CUSTOMER CAN ENFORCE THE TERMS HEREOF AGAINST THE MERCHANT IN SO FAR AS THE MERCHANT ATTEMPTS TO COLLECT A GIVEN TRANSACTION PAYMENT ON WHICH A RECEIPT HAS ALREADY BEEN ISSUED. NO DELAY IN PAYMENT BY QUID ON A GIVEN TRANSACTION AMOUNT TO MERCHANT, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION SEIZURE OF QUID ASSETS OR BANKRUPTCY OF QUID, SHALL SERVE TO DIMINISH THE FOREGOING OR ENTITLE MERCHANT TO COLLECT ANY AMOUNT FROM A CUSTOMER IN RESPECT OF WHICH PAYMENT HAS BEEN MADE BY A CUSTOMER TO QUID PURSUANT TO THE TERMS OF THIS AGREEMENT.
User Merchant Relationship
QUID is not party to the Merchant Relationship that necessitates the Invoice, Transaction or Receipt. Merchant shall indemnify and hold harmless QUID and its shareholders, directors, officers and employees from any and all claims, losses or other liabilities arising from or in relation to the Merchant Relationship or any Merchant Content, including any and all costs associated with the legal defense related to such claims.
Returns, Refunds or Chargebacks
QUID may, at its sole discretion, reverse or refund any Transaction hereunder where QUID has determined that the Merchant has not delivered value in exchange for the Transaction, where an error has occurred or where QUID believes that a refund to the User is necessary. Merchant shall reimburse QUID for the amounts of any such refunds or returns and QUID may, at its discretion, recoup such amounts from future settlements to the Merchant. Under no circumstances will QUID permit any Transaction to be subject to a return, reversal, refund or chargeback unless QUID believes that the Transaction occurred through a breach hereof by Merchant or was otherwise in furtherance of Prohibited Activity, in which case QUID reserves the right to return the face-value thereof to the User or withhold the amount thereof pending an order by a court of competent jurisdiction to remit it to Merchant, User or a government authority.
Merchants shall pay Fees for use of the Merchant Services as outlined in the Fee Schedule. Pursuant to instructions from Merchant through the Site or otherwise through the Merchant Services, when Merchant initiates any Transaction or requests a Service for which Fees are applicable, the Fees will be deducted from the settlement of the Transaction to the Merchant. Where Merchant fails to pay Fees to QUID under this Agreement or is otherwise liable to QUID hereunder, Merchant grants QUID the right to debit the amount of the Fees, plus other amounts from the Merchant Deposit Account as per the PAD Authorization. The Fees set out in the Account, such as they may be from time to time, are incorporated herein by reference and form a part of this Agreement. Fees collected are not refundable.
PAD Authorization – Canadian Merchants Only
This Section applies only to Merchants that are located in Canada (each a “Canadian Merchant”). Pursuant to this Agreement, Merchant hereby authorizes QUID Works Inc. (“QUID”) to draw on the Merchant Deposit Account at the bank where it is maintained (the “Bank”) as specified in the information concerning the Merchant Deposit Account provided to QUID through the Account to receive Fees and other amounts owing by Merchant to QUID and by QUID to Merchant pursuant to the terms of the Agreement (the “PAD Authorization”). All payment of any amounts owing, whether regular and recurring or not, will be debited as and when they are owing under the Agreement, as determined by QUID.
For debits other than regular recurring debits and/or one-time payments owing in connection with the Agreement, Merchant understands that QUID will obtain Merchant’s authorization prior to initiating any such debit.
In particular, Merchant further agrees that if any payment is dishonoured by the Bank for any reason, then QUID shall be entitled to issue another debit in substitution for the dishonoured debit. Merchant acknowledges that this PAD Authorization is provided for the benefit of QUID and the Bank and is provided in consideration of the Bank agreeing to process debits against Merchant Deposit Account in accordance with the rules of Payments Canada.
Merchant shall be charged a fee for each credit and debit, that cannot be processed, and all subsequent funding may be suspended until Merchant either (i) notifies QUID that credits and debits can be processed or (ii) a new Authorization is signed by Merchant. Bank must be able to process or accept credits and debits electronically.
Bank’s treatment of each debit shall be the same as if Merchant had issued its cheque authorizing the Bank to pay as indicated and to debit the amount specified to Merchant Deposit Account. Merchant confirms that this means, in part, that the Bank is not required to verify that a pre-authorized debit has been issued in accordance with Merchant’s instructions or that some pre-condition to payment has been met or satisfied.
This PAD Authorization may be cancelled at any time by written notice by Merchant to QUID which notice shall be effective five business days after receipt. To obtain a sample cancellation form, or for more information on the right to cancel this PAD Authorization, Merchant understands that Merchant may contact Bank or visit www.cdnpay.ca. This PAD Authorization applies only to the method of payment and Merchant agrees that revocation of this PAD Authorization does not terminate or otherwise having any bearing on the Agreement. This PAD Authorization may be discontinued at any time by QUID without notice. Delivery of this PAD Authorization, to QUID, constitutes delivery by Merchant to Bank. Merchant confirms that the debits authorized hereunder are for business purposes. Merchant hereby waives the right to receive any notice, written or otherwise, from QUID of the amount to be debited and the date(s) on which such debits are to be processed, as well as notice of any and all future changes to the amounts or payment dates.
Merchant hereby waives the “Pre-notification/Confirmation” requirements set out in Appendix II of Rule H1 (“Pre-authorized Debits”) of Payments Canada. Merchant understands that Merchant has recourse rights if any debit does not comply with this PAD Authorization. For example, Merchant has the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD Authorization. To obtain more information on Merchant’s recourse rights, Merchant may contact the Bank or visit https://www.payments.ca. Merchant consents to the disclosure of any relevant information contained in the Agreement and this PAD Authorization to the financial institution for purposes of the Automatic Debit Program. QUID may assign this PAD Authorization, whether directly or indirectly, by operation of law, change of control, or otherwise, by providing at least ten (10) days prior notice to Merchant. All capitalized terms used in this PAD Authorization and not otherwise defined shall have the meaning set out in the Agreement.
Merchant understands that Merchant may contact QUID at the address or phone number on the Site of the Agreement to make inquiries, obtain information or seek any recourse rights.
ACH Consent - US Merchants
This Section applies only to Merchants located in the U.S. Merchant desires to effect settlement of credits and debits from the Merchant Deposit Account by means of Automated Clearing House (ACH) and/or wire transfer in conjunction with the Services. In accordance with this desire, Merchant authorizes QUID and/or its affiliates to initiate debit and credit entries to the Merchant Deposit Account. Merchant agrees to maintain sufficient funds in Merchant Deposit Account to cover debit transactions. Merchant states that it has authority to agree to such transactions and that the Merchant Deposit Account indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until QUID receives written notice from Merchant revoking it. Merchant also certifies that the appropriate authorizations are in place to allow Merchant to authorize this method of settlement. All changes to the identification of the Merchant Deposit Account under this authorization must be made in writing in accordance with the Agreement. Merchant understands that if the information supplied as to the ABA Routing Number and Account Number of the Merchant Deposit Account is incorrect, and funds are incorrectly deposited, QUID will attempt to assist Merchant in the recovery of such funds but has no liability as to restitution of the same. QUID’s assistance in recovering the funds, where available, will be billed to Merchant at QUID’s current hourly rate for such work. Merchant acknowledges that the origination of ACH transactions to the Merchant Deposit Account must comply with the provisions of U.S. law.
Direct Deposit Consent – International Merchants
Where Merchant is in a location other than the U.S. or Canada, Merchant agrees that QUID may, directly or indirectly, deposit amounts payable to Merchant into the Merchant Deposit Account and debit from the Merchant Deposit Accounts amounts owing by Merchant to QUID hereunder and shall execute such additional consents as may be required to perform such payments.
Merchant hereby warrants and covenants to QUID that:
a) Duly Constituted. The Merchant is a business or carries on an organized economic activity for profit or otherwise and, if it is not an individual, is duly constituted under the laws of its constituting jurisdiction and that it has legal capacity to enter into this Agreement and perform its obligations hereunder. The Merchant is registered as a business or charity in every jurisdiction where it carries on business;
b) Duly authorized. Merchant has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the Merchant does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the Merchant is subject;
c) Notice of Defects. Merchant will immediately advise QUID and its Users in writing of defects in the Merchant Content or any claim or threatened claim against it in relation to the Merchant Content;
d) Compliance with Laws. The Merchant Content conforms to all applicable laws in the jurisdictions where QUID, Merchant and its customers are located. It will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all applicable laws and regulations, including but not limited to all laws and regulations applicable in each jurisdiction where the Merchant Content is sold. Merchant shall not use the Merchant Services to sell or promote or otherwise facilitate any Prohibited Activities;
e) Solely for Business Purposes. Merchant shall use the Merchant Services exclusively for business purposes or in the course of carrying on an organized economic activity, whether for profit or otherwise;
f) Opportunity to Consult Counsel. Merchant has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof;
g) Taxes on Merchant Content. To the extent that Merchant is responsible for collecting taxes from Users for the sale of Merchant Content, then such responsibility shall be solely of the Merchant and Merchant shall indemnify and hold QUID harmless from and against any and all liabilities that QUID may incur in respect of taxes on Merchant Content;
h) QUID Not Liable for Merchant Content. Merchant assumes all responsibilities and liabilities associated with its Merchant Content. QUID assumes no liability for any Merchant Content and all Merchant shall indemnify and hold QUID harmless in respect of all claims, liabilities or other losses arising from or on account of any Merchant Content.
i) Sale of Merchant Content. Merchant shall offer for sale those Merchant Contents that it advertises on the terms and conditions advertised by the Merchant. Merchant shall not make any false representations concerning any Merchant Contents. Merchant shall not sell any Merchant Content that is illegal in the United States, Canada or any applicable jurisdiction where QUID, Merchant or Merchant Users are located or domiciled. This provision shall also apply to all Merchant Content provided sold by the Merchant, whether or not the Merchant Services are used in relation thereto.
j) Maintenance and Service. Merchant shall be exclusively responsible for any and all support and maintenance related to any Merchant Content and it shall supply such support and maintenance to purchasers of Merchant Content in a prompt, professional manner and on reasonable terms. While QUID assumes no obligation in this regard, QUID reserves the right to forward all correspondence concerning a Merchant Content to the Merchant.
Collection, Use, Storage and Disclosure of Personal Information.
Merchant hereby grants QUID a perpetual, royalty-free license in all Data for QUID to collect, store, use and disclose Data in order to supply the Merchant Services and solicit Users with advertising and other offers.
Merchant represents that it has obtained all necessary consents from Users for QUID to collect, store, use and disclose User Data in order to provide the Merchant Services and for such other purposes as are set out herein.
On request by QUID or its suppliers or law enforcement, Merchant shall provide or obtain such information as may be reasonably necessary for QUID to supply the Merchant Services and ascertain the risk related to any given User or Transaction. QUID reserves the right to share with the financial institution holding Transaction funds the identity of Merchant as well as Users and any other Confidential Information of Merchant that it may require.
Dispute Settlement Policy
In the event of a dispute between a Merchant and QUID as to the accuracy or completeness of any Service provided to the Merchant, Merchant shall provide QUID with a detailed written description of its concerns. QUID shall then, within thirty (30) days of receipt of such writing, investigate the matter and provide a response which response shall be final and not subject to further review, except through arbitration as described below. In so far as the dispute relates to another Merchant, QUID reserves the right to forward the notice sent to QUID to such other Merchant, but QUID will not be a party to such a dispute nor assist in resolving any such inter-Merchant dispute. Nothing in this provision shall create any liability on the part of QUID in respect of obligations between or among Merchants.
At the discretion of QUID, Merchant shall deposit into an account (the “Reserve Account”) maintained by QUID (or other depository institution approved by QUID) initially or at any time in the future as requested QUID, sums sufficient to satisfy your current or future obligations as determined by QUID. Funds, if any, in the Reserve Account shall remain in the Reserve Account until each of the following has occurred: (a) this Agreement has been terminated; and (b) Merchant has paid in full all amounts owing or that could ever be owed under this Agreement, including, without limitation, all outstanding or uncollected amounts and potential chargebacks from or in respect of Merchant. QUID may, at its discretion, require that the amount on deposit in the Reserve Account be increased. In no event shall Merchant be entitled to a return of any sums remaining in the Reserve Account before three hundred (300) days following the effective date of termination of this Agreement.
QUID may, at its discretion, deposit into the Reserve Account funds they would otherwise be obligated to pay Merchant, for the purpose of establishing or maintaining the Reserve Account in accordance with this Agreement if QUID determines such action is reasonably necessary to protect its interests. Merchant shall maintain at all times a balance in the Reserve Account sufficient to protect QUID against losses resulting from transactions initiated by Merchant or in respect of Merchant.
QUID may, at its discretion, apply deposits in the Reserve Account against any outstanding amounts owed by Merchant under this Agreement or any other agreement between Merchant or any of its Affiliates and QUID or any of its Affiliates. Also, QUID may debit the Reserve Account to exercise their rights under this Agreement to collect any amounts due to QUID or a Merchant (as determined by QUID) including, without limitation, rights of set-off and recoupment. Without limitation, QUID may, at its discretion, offset any amounts owing to it from any amounts it would otherwise be obligated to settle to Merchant.
Merchant shall defend, indemnify and hold harmless QUID, its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys’ fees and expenses) arising out of or resulting from: (i) Merchant’s performance under this Agreement including, without limitation, performance, non-performance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Merchant; (ii) the negligent or wilful acts or omissions of Merchant or Merchant’s agents and/or employees; and (iii) any statements, claims, representations or warranties made by Merchant or Merchant’s agents and/or employees, relating to the Merchant Contents or any other matter.
Term and Termination
a) Term. This Agreement shall be effective commencing on the date that Merchant has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and ends on the last calendar day of the month in which the Merchant accepted the terms of this Agreement (the “Initial Term”). After the Initial Term, this Agreement shall be renewed automatically for additional and successive calendar months, unless earlier terminated in accordance with the terms hereof.
b) Termination. Either party may terminate this Agreement at any time on notice to the other party. QUID reserves the right to suspend supply of the Merchant Services or terminate this Agreement without prior notice to Merchant in the event that QUID determines, in its sole discretion, that continuing to perform hereunder would expose QUID to excessive security, financial or reputational risk.
c) Procedure upon Termination. Upon any termination of this Agreement, Merchant shall no longer be entitled to use the Account, Merchant Services or the Site. All provisions regarding Fees, indemnification, representations, warranties, liability and limits thereon and Confidential Information shall survive termination and termination of this Agreement shall not relieve the Merchant of its obligations to pay accrued Fees or other liabilities of Merchant hereunder, accruing before or after termination. On termination, Transactions pending settlement at the time of termination shall be settled notwithstanding the termination, subject to a right of offset in favor of QUID to off-set unpaid Fees or other liabilities of Merchant to QUID under this Agreement.
d) Discontinuance. QUID reserves the right to discontinue the Service at any time, provided that such discontinuance shall not interfere in settlement of Merchant funds already in possession of QUID less applicable Fees and other liabilities of Merchant to QUID.
Merchant agrees that, during the Term hereof and for a period of two (2) years thereafter neither Merchant nor any of its Affiliates will directly or indirectly disclose any Confidential Information. Upon any termination hereof, Merchant shall return all Confidential Information in its possession to QUID.
LIMITATION OF LIABILITY
a) NO WARRANTIES. THE MERCHANT SERVICES ARE PROVIDED ON AN "AS-IS", "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QUID EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE MERCHANT SERVICES PROVIDED BY QUID OR THAT THE OPERATION OF THE MERCHANT SERVICES WILL BE INTERRUPTION OR ERROR FREE.
b) LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NONE OF QUID, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS OR LICENSORS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO MERCHANT FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF QUID HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL QUID’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE MERCHANT, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT (AND ALL OTHER AGREEMENTS BETWEEN QUID AND MERCHANT) EXCEED THE FEES ACTUALLY PAID TO QUID BY MERCHANT DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
c) Force Majeure. QUID shall use its commercially reasonable efforts to perform its obligations hereunder, however, none of QUID, its Affiliates, shareholders, directors, officers, agents or licensors shall be liable for any loss resulting from the activities of Merchant, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond QUID’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. QUID’s obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by Merchant.
a) Currency. The currency applicable to payments hereunder shall be that currency disclosed to you on the Site, for each Transaction or in your Account.
b) Notices. Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested: to QUID at the postal address provided therefore on the Site; to Merchant at the address or email address provided therefore upon registration with the Site; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally or by email, or on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
c) Independent Contractor. Neither party has any right to create any obligations on the part of the other party, without the other's prior written consent. Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or as agents or employees of one another or as authorizing either party to obligate the other in any manner. Merchant shall not: (1) bind QUID to any contract or agreement; (2) incur any obligation on behalf of QUID; (3) release, assign or transfer any agreement, claim, security or any other asset of QUID; (4) borrow or lend any money in the name of QUID; or (5) submit to any claim or liability related to the Merchant Services, allow judgment to be taken or confessed against QUID. Merchant, being an independent contractor, shall not receive as compensation, or be reimbursed, for any of the following: (i) work materials that Merchant may use in performing hereunder, (ii) business facilities, telephone, automobile or any other equipment, (iii) any Merchant employee benefit, (iv) reimbursement for any other cost or expense incurred by Merchant in its promotion of the Merchant Services hereunder.
d) On-Line or Written Formation of Contract. By acceptance of the terms hereof on-line by Merchant or by execution of a written acceptance of the terms hereof by Merchant, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. Merchant agrees to receive correspondence under this Agreement by electronic means.
e) Amendments to this Agreement. From time to time QUID will post amendments or revisions to this Agreement, including, without limitation, amendments to Fees, on the Site. QUID will provide notice of these amendments or revisions to Merchant through the Site. If the amendment or revision is required in order for QUID and the Merchant Services to remain in compliance with applicable laws or payment processor regulations, then the amendment or revision shall take effect as of when it is posted to the Site. If, on the other hand, the amendment or revision is not required under law or by a payment processor of QUID, and Merchant does not close its Account within thirty (30) days of notice on the Site of the amendment or revision, then the Merchant shall be deemed to have accepted the amendment or revision. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as QUID may reasonably prescribe.
f) Assignment. None of Merchant or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of QUID which consent may be withheld for any reason, at QUID's sole discretion. QUID may assign any of its rights or obligations hereunder without prior notice or consent of Merchant.
g) Successors. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Merchant may not assign any of its rights or obligations under this Agreement to any third party without the prior written consent of QUID.
h) Missing Merchants. If, for whatever reason, QUID is unable to contact a Merchant to complete a Transaction for their benefit, then Merchant shall retain title in such unsettled funds, but after ten (10) months, QUID reserves the right to remit the amount thereof to government authorities responsible for taking possession of lost property in the jurisdiction of the Merchant or that of QUID.
i) Enforcement. The Merchant shall be liable for and shall indemnify and reimburse QUID for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by QUID in the enforcement of this Agreement, or in collecting any amounts due from Merchant hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
j) Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
k) Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
l) Governing Law and Choice of Forum. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be exclusively settled by arbitration administered by the Canadian Arbitration Association under its Expedited Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, and the venue of any arbitration commenced under this section shall be in Toronto, Ontario, Canada. Merchant agrees to waive any right it may have to: (i) a trial by jury; and (ii) the commencement of or participation in any class action against QUID related to Merchant Services, Merchant also agrees to opt out of any class proceedings against QUID or its licensors.
m) Whole Agreement. References to "this Agreement" include any Account Fees, schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by QUID and furnished to Merchant from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.
The following terms shall have the meanings indicated below:
a) “Account” means an account made available to a Merchant through which Merchant can transmit instructions or receive information in relation to the Merchant Services;
b) “Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person's principal partners, shareholders, or owners of some other ownership interest;
c) “API” means an application programming interface of QUID enabling the parties hereto to exchange Data;
d) “Application” means the paper or online application completed by Merchant when applying for the Merchant Services all of which is incorporated herein by reference;
e) “Confidential Information” means all proprietary, secret or confidential information or data relating to QUID and any of its Affiliates, operations, employees, independent sales organizations, agents, products or services, clients, customers or potential customers, Merchants, users or merchants. Confidential Information shall include, without limitation, Merchant lists, all Merchant agreements and all parts thereof, financial or other data in any format, computer access codes, instruction and/or procedural manuals, payroll information, human resource or personnel information, business strategies and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. In order for Merchant to perform hereunder, QUID will be obliged to disclose to Merchant certain Confidential Information concerning the Merchant Services and Business;
f) “Fees” means those amounts for which Merchants are liable to pay in consideration of the Merchant Services, as indicated in the Account;
g) “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
h) “Invoice” means the record of an amount owing from a User to a Merchant for Merchant Content for which the Merchant wishes to receive payment by way of the Merchant Services;
i) “Merchant Content” means Intellectual Property of Merchant or its licensors or other services or products provided by Merchant and supplied through the Merchant Site for which Merchant wishes to receive payment by way of Merchant Services;
j) “Merchant Deposit Account” means a bank account of the Merchant designated by the Merchant as the account into which Transaction amounts should be deposited;
k) “Merchant Relationship” means the agreement or other relationship between a Merchant and a User where either wishes to make use of the Merchant Services in relation thereto;
l) “Merchant Services” means the service of QUID acting as an agent of a Merchant for the purpose of: (i) informing Users of the Merchant concerning how Transactions may be completed for the benefit of the Merchant; (ii) serving as an agent of the Merchant for the purpose of accepting payment from Users; and (iii) serving as an agent of Merchant to deliver receipts to Users for payment to Merchant by way of Transactions;
m) “Merchant Site” means a website, platform or channel through which Merchant Content is offered to Users;
n) “Merchant” means the merchant that is identified in the Application or that otherwise accepts this Agreement;
o) “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
p) “Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following adult or adult-related services, including escort services, adult massage, or other adult-entertainment services; adult performers or adult webcam services; any act that is illegal in the United States, Canada or in the jurisdiction where the person carrying out the activity is resident, domiciled or located; bath salts and herbals; betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet sites and wagers at races; bill payment services; buyers or discount clubs; cigarettes, tobacco or e-cigarettes; credit counseling or repair agencies; credit protection or identity theft protection services; digital goods including digital currency; direct marketing or subscription offers; inbound or outbound telemarketing businesses including lead generation businesses; infomercial sales; internet, mail or telephone order pharmacies or pharmacy referral services; items that encourage, promote, facilitate or instruct others to engage in illegal activity; items that may be counterfeit including, but not limited to: designer handbags, clothing and accessories, and consumer electronics; items that may infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; items that promote, support or glorify acts of violence or harm towards self or others; legal fees including bankruptcy attorneys; live animals; medical equipment; multi-level marketing businesses (MLM); obscene or pornographic items; payment aggregators; prepaid phone cards or phone services; purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses; real estate or motor vehicles; rebate based businesses; sales of money-orders or foreign currency; up-sell merchants; using the Merchant Services as a means to transfer funds between bank accounts held in the same name; using the Merchant Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy; using the Merchant Services in a manner that QUID or any payment card network reasonably believes to be an abuse of the payment card system or a violation of payment card network rules; using the Merchant Services in any manner that could damage, disable, overburden, or impair QUID including without limitation, using the services in an automated manner; using the Merchant Services in violation of the terms of this Agreement, as reasonably determined by QUID; using the Merchant Services that in any way assists Merchant or others in the violation of any law, statute or ordinance; using the Merchant Services to collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes or certain multi-level marketing programs; using the services to control an account that is linked to another account that has engaged in any of the foregoing activities; using the Merchant Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent; using the Merchant Services to intentionally interfere with another user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code; using the Merchant Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others; using the Merchant Services to provide User with a cash advance from User’s own credit card or to help others to do so; using the Merchant Services to send or receive what QUID considers to be funds for something that may have resulted from fraud or other illegal behavior; using the Merchant Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or weapons including replicas and collectible items; weight loss programs; wire transfer money orders;
q) “Receipt” means a Merchant receipt delivered by Merchant or QUID to a User of Merchant that serves as proof of payment of a Transaction amount by the User to the Merchant, by way of the Merchant Services;
r) “Transaction Limits” means those limits on the size and timing of Transactions as QUID may establish from time to time, as indicated in the Account;
s) “Transaction” means a payment transaction by way of the Merchant Services;
t) “User” means a Person who wishes to make a payment to a Merchant for Merchant Content through the Merchant Services;
If Merchant has any questions concerning this Agreement, please contact QUID through the contact information set out on the Site.
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