QWIZEEN Terms and Conditions

QWIZEEN Merchant Agreement

Effective: October 25^th, 2023

BY (1) CLICKING A BOX INDICATING MERCHANT’S ACCEPTANCE OF THESE TERMS, OR (2) BY EXECUTING AN ORDER FORM AND MERCHANT APPLICATION AND/OR MASTER SERVICES AGREEMENT THAT INCORPORATES THIS MERCHANT AGREEMENT (THE “AGREEMENT” OR “MERCHANT AGREEMENT”) OR BY USING ANY SERVICES, SOFTWARE OR HARDWARE PROVIDED OR OTHERWISE MADE AVAILABLE BY QWIZEEN  LLC, ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY “QWIZEEN”), MERCHANT AGREES TO BE BOUND BY AND COMPLY WITH THE FOLLOWING: THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PAYMENT PROCESSING TERMS, THE QWIZEEN PRIVACY STATEMENT, THE QWIZEEN TERMS of SERVICE, AND ALL OTHER TERMS, CONDITIONS, AND POLICIES PERTAINING TO THE SERVICES AS DESCRIBED HEREIN, ALL OF WHICH ARE INCORPORATED INTO THIS MERCHANT AGREEMENT BY REFERENCE (COLLECTIVELY, THE “ADDITIONAL TERMS”), AS APPLICABLE TO THE SPECIFIC SERVICES MERCHANT USES. 

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE   AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES DESCRIBED HEREIN.

IF MERCHANT DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, OR ANY OF THE ADDITIONAL TERMS, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY QWIZEEN SERVICES, SOFTWARE OR HARDWARE. CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANING ASCRIBED TO THEM IN SECTION 20 (DEFINITIONS). WHERE APPLICABLE, CERTAIN REFERENCES TO QWIZEEN MAY ALSO BE DEEMED TO INCLUDE QWIZEEN’S BANK PARTNERS AND/OR PAYMENT PROVIDER(S), WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE TO MERCHANT. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE MERCHANT TO SUBMIT CLAIMS MERCHANT HAS AGAINST QWIZEEN TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) MERCHANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST QWIZEEN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) MERCHANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

Merchant and QWIZEEN hereby agree as follows:

1. General

1.1 Upon consent or acceptance as provided above, these Merchant Terms and Conditions ("Terms") are an agreement between the company either identified within the QWIZEEN sign up process or that executes an Order Form or related agreement (in either case, “Merchant” or “You”)QWIZEEN LLC (“QWIZEEN”). Upon acceptance of these Terms, Merchant may request access to Sales Channels (as described in more detail herein) and Services. Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Merchant. QWIZEEN maintains sole discretion for initial and/or ongoing provision of any such Sales Channel(s) or Service(s). These Terms may be subject to and/or incorporate an Order Form between Merchant and QWIZEEN (the “Order Form”), and/or any applicable Sales Channel Addenda, Product Addenda, or terms of use (these Terms, together with any such Order Form, addenda, or terms of use, collectively, the “Agreement”). Merchant’s access to and use of the Services and Tools (as defined herein) is subject to the Agreement and may be modified or updated by QWIZEEN from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addenda. Merchant is responsible for updating contact information and regularly reviewing the Agreement and any applicable Product or Sales Channel Addenda for updates and information from QWIZEEN.  Continued use of the Services, Tools, and/or App(s) after any such modifications or updates shall constitute Merchant’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addenda.

1.2 Scope. The Agreement applies to and governs Merchant's access to and use of the Services, Hardware, and Professional Services ordered by Merchant under an Order. The Services may include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees to place orders and process Payments; (b) processing of Payments and facilitating payment of Net Sales Proceeds to Merchant’s Bank Account; (c) providing Merchant with certain reporting on its sales and activities; (d) working with Merchant with respect to any Customer inquiries related to Payments or placing orders, in each case under Merchant’s QWIZEEN Account; (e) kitchen, inventory, and reservation management modules; (f)Sales channels; (g) gift and loyalty programs; and Qwizeen Apps. Merchant may request access to Sales Channels (as described in more detail herein) and Services. Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Merchant. QWIZEEN maintains sole discretion for initial and/or ongoing provision of any such Sales Channel(s) or Service(s).

2. Right to Use the Services

2.1. Subject to Merchant’s compliance with the terms and conditions of the Agreement, QWIZEEN and its affiliates grant to Merchant a limited, non-transferable (except in accordance with Section 19.4 below), non-sub-licensable, non-exclusive, revocable license during the Term to permit Employees to access and use the Services solely and exclusively for Merchant’s internal business purposes. The Services are licensed, not sold, and Merchant acknowledges that it does not acquire any license to use the Services in excess of the scope and duration of the license to the Services specified in the Agreement. This license does not grant to Merchant or any other party any right to copy, modify, enhance, or transfer the Services or otherwise disclose any Confidential Information disclosed by QWIZEEN to any third party including without limitation any Intellectual Property Rights (as more fully described in Section 5.1 below).

2.2. Merchant is (a) solely responsible for maintaining the security and control of its premises, equipment (including Hardware and associated firmware), and username(s) and access passwords to its QWIZEEN Account; and (b) fully liable for all activity of its Employees and Customers that occur under its QWIZEEN Account, whether authorized by Merchant or not. Merchant agrees to immediately notify QWIZEEN if it becomes aware of any unauthorized activity under its QWIZEEN Account and will cooperate with QWIZEEN to prevent any further unauthorized activity. Furthermore, regarding Hardware being shipped to the Merchant, Merchant agrees that change of title and ownership, and risk of loss, shall transfer to Merchant at the point of shipment.

2.3. As part of the Services, QWIZEEN may provide access to the QWIZEEN Platform including certain QWIZEEN Apps. When Employees download or use the QWIZEEN Platform or any Employee-facing QWIZEEN App, Merchant must ensure its Employees read and agree to the End User License Agreement on their own behalf or on behalf of Merchant, as applicable, which protects QWIZEEN’s rights in the Services and allows use of the applicable QWIZEEN App only for the purposes of Merchant (including its Employees) accessing and using the Services in accordance with this Section 2 and Section 4 below.

2.4. As part of the Services, QWIZEEN may from time to time communicate with Merchant using the contact methods provided by Merchant at the time of application and/or during Merchant’s use of the Services, Hardware or Professional Services. Merchant expressly agrees that if it or any of its Employees provide a mobile phone number or email address to QWIZEEN, QWIZEEN is authorized to contact Merchant or Employees including without limitation at that number or email address using autodialed or prerecorded message calls or text messages in order to provide transactional, servicing, and account-related messages to Merchant. 

2.5 Sales Channels. Merchant may request access to sell and deliver Items via various services provided by QWIZEEN: Full Service, Pick-Up, and Merchant Managed Delivery (each, a “Sales Channel” described in more detail below). By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:

1. FULL SERVICE (ALSO REFERRED TO AS QWIZEEN NOW): Merchant may sell Items through the “Full Service Sales Channel,” whereby Merchant’s Items are presented in the App(s) to Customers who access and request on-demand delivery services provided by Delivery People as defined herein.

2. PICK-UP: Merchant may sell Items through the “QWIZEEN ONLINE Sales Channel,” whereby Merchant’s Items are presented on the App(s) to Customers for pick-up at Merchant’s Location (i.e., without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Items through this Pick-Up Sales Channel.

3. MERCHANT MANAGED DELIVERY: Merchant may sell Items through the “Merchant Managed Delivery Channel,” whereby Merchant’s Items are presented on the App(s) to Customers who access and request on-demand delivery services provided by Merchant Managed Delivery Staff (i.e., employees, contractors, workers or agents of Merchant who provide delivery services on Merchant’s behalf, arranged independently of Portier). Additional Merchant Managed Delivery Sales Channel Addendum terms apply.

2.6 QWIZEEN ONLINE

1. Access to Services.

Subject to the terms and conditions of this Agreement, QWIZEEN and its affiliates may make available the applicable Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide QWIZEEN current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Merchant, QWIZEEN and its affiliates, on behalf of Merchant, may respond to complaints by end users of the App(s) (“Customers”) about Items sold by Merchant via the App(s). In addition, QWIZEEN may make available certain Tools to Merchant, and Merchant may access and use those Tools solely in connection with Merchant’s use of the Services. For the avoidance of doubt, as between Merchant and Portier, QWIZEEN will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)including: (i) the personalization of the App(s) for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Delivery People; and (v) adding, removing or otherwise modifying any feature or functionality made available through the App(s) to optimize reliability or efficiency on the App(s).

2. Technology, Not Delivery, Services.

Merchant agrees neither QWIZEEN nor its affiliates provide any delivery services. Rather, QWIZEEN provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Customers, and not Merchant. “Delivery Person” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for delivery services using QWIZEEN’S proprietary technology under license from QWIZEEN or its affiliates.

3. Implementation and Professional Services

3.1. If Merchant orders any Professional Services under an Order, then, upon request from QWIZEEN, Merchant will promptly provide QWIZEEN with any information, resources and assistance required by QWIZEEN to enable the implementation of the Services or ongoing provision of the Services for Merchant’s purposes as described on the Order and, if applicable, to provide training to the Employees. Any dates specified in an Order are estimates only and are contingent upon Merchant’s timely compliance with its obligations relative to such implementation and any dependencies on Merchant’s performance. If, and to the extent of, any default or breach on the part of QWIZEEN under this Agreement that is caused in whole or in part as a result of Merchant’s failure to timely perform its obligations under this Agreement and/or any Order, then QWIZEEN shall be entitled to relief from all liability with respect to such failure or delay, and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ prior written notice to Merchant.

4. Usage Restrictions

4.1. Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with QWIZEEN's provisioning of the Services (including but not limited to the use of automated systems or software (e.g. screen scraping) to extract data from the QWIZEEN Platform or other aspects of the Services); (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the QWIZEEN Platform or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or QWIZEEN’s network; or (i) copy any features, functions, text or graphics of the Services including without limitation, the structure, sequence or organization of the user Platform.

4.2. Merchant represents, warrants and covenants that (a) any sales transaction submitted by Merchant will represent a bona fide sale of goods or services by Merchant to a Customer; (b) any sales transactions submitted by Merchant will accurately describe the goods and/or services sold and delivered to a Customer; (c) Merchant will fulfill all of its obligations to each Customer for which Merchant submits a transaction and will resolve any consumer dispute or complaint directly with Customer; (d) Merchant and all transactions initiated by Merchant will comply with Applicable Law and Rules; (e) except in the ordinary course of business, no sales transaction submitted by Merchant through the Services will represent a sale to any principal, partner, proprietor, or owner of Merchant’s entity; (f) neither Merchant nor any of its Employees shall retain or store any portion of the magnetic-stripe data subsequent to the authorization of a sales transaction, nor any other data prohibited by Applicable Law and Rules, or this Agreement, or engage in the unauthorized use, transfer or disclosure of the same; (g) Merchant’s use of the Services will be in compliance with this Agreement; and (h) Merchant has put in place appropriate policies as well as technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant’s obligations under this Agreement. Except as otherwise permitted by QWIZEEN in writing, the payment processing portion of the Services may only be used in the United States of America; provided, that QWIZEEN reserves the right to restrict Merchant’s ability to accept certain Card payments in United States territories.  As such, Merchant may not export or otherwise make available the payment processing portion of the Services directly or indirectly, outside of the United States of America, and Merchant acknowledges that the Services may be subject to export restrictions imposed by Applicable Law and Rules including U.S. Export Administration Regulations (15 C.F.R. Chapter VII) and the Foreign Corrupt Practices Act (“FCPA”).  Merchant acknowledges and agrees that Merchant is solely responsible for its own compliance with Applicable Law and Rules.

4.3. Merchant will use the Services only for its management and operation of its own business, and not for any business, services or offerings of non-affiliated third-parties. Without limiting the generality of the foregoing, Merchant will not act as a payment intermediary or aggregator on behalf of any third-party. This means that Merchant may not use the Services to handle, process or transmit funds for any third party. Merchant is also prohibited from using the Services to process cash advances.

4.4. QWIZEEN will review the information that Merchant submits via an Order Form, in connection with Merchant’s request to sign up for the Services, and QWIZEEN will forward such information to its payment provider(s). Merchant hereby agrees that QWIZEEN may share information about Merchant and Merchant’s Bank Account with its payment provider(s) for the purpose of providing the Services to Merchant or with other third parties for validation purposes. Once Merchant submits its Order Form, which includes the merchant application, QWIZEEN or its payment provider(s) may conclude that Merchant is not permitted to use the Services, in which case QWIZEEN may decide in its sole discretion to discontinue entering into an Agreement with Merchant, or if an Agreement has already been formed, may immediately terminate this Agreement. Merchant shall ensure any information it has provided including information regarding its Merchant Bank Account, is up to date at all times, shall notify QWIZEEN immediately of any changes thereto and authorizes and instructs QWIZEEN to share any such changes with its payment provider(s). 

4.5. Merchant will provide information requested by QWIZEEN, in connection with Merchant’s application or ongoing business thereafter, within five (5) business days following such request (unless required sooner under Applicable Law and Rules or by QWIZEEN’s payment provider(s)) including without limitation invoices from suppliers, government-issued identification or a business license. Merchant must also provide QWIZEEN with access to inspect Merchant’s business location(s) upon request. Merchant, each of its then-current beneficial owners (i.e., persons who directly or indirectly have greater than a 25% ownership stake in Merchant),  and its then-current designated control person (i.e., an individual having significant responsibility to control, manage or direct Merchant), each authorize QWIZEEN to obtain–and will provide to QWIZEEN upon request–identity-verifying information about Merchant,  beneficial owners, and such designated control person from time to time including documentation as necessary, consumer reports on Merchant and such beneficial owners and designated control person including information relative to criminal history, or any other information necessary to comply with the requirements of the Bank Secrecy Act, as amended by the US PATRIOT Act of 2001, or as otherwise amended, modified, or replaced from time to time, as well as requirements of the Office of Foreign Assets Control.

4.6. QWIZEEN may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. QWIZEEN will not be liable for any such interruptions, delays, errors or bugs. QWIZEEN may contact Merchant in order to assist QWIZEEN with the Services and obtain information needed to identify and fix any errors. The Services do not function with every mobile device and may only be used on approved QWIZEEN Hardware. QWIZEEN may alter which Hardware is approved as compatible with the Services in QWIZEEN’s discretion from time to time, subject to reasonable notice.

4.7. Merchant will comply with the following requirements in connection with its use of the Services: (a) with respect to each Customer who requests the delivery of transaction receipts via text message or email, such Customer must individually enter his or her Customer Data in the appropriate space displayed on the applicable device; Merchant and/or Employees are NOT permitted to add or modify any Customer Data (including but not limited to phone number and email address) on behalf of a Customer unless requested by the Customer; (b) any communications provided to Customers as part of the Services (e.g. marketing, enrollment in a loyalty program) who desire to receive marketing material, enroll in a loyalty program, or otherwise receive communications from Merchant as part of the Services, must have provided their contact information as part of the Services and have consented to these communications as required by applicable law; Merchant and/or Employees are NOT permitted to add or modify a Customer's consent indication on his or her behalf unless specifically requested by Customer; (c) Merchant shall not send any communicationsincluding transactional or commercial messages, to Customers in violation of Applicable Law and Rules includingincincluding without limitation the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act (2003) and Canada's anti spam legislation contained in An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (as the same may be amended, modified, or replaced); (d) if Merchant is located in Canada and its loyalty program includes points used by guests to purchase goods or services from Merchant, Merchant may not terminate the points under such program by the passing of time alone unless the goods or services obtained through such points are, individually, worth less than $50 Canadian; (e) to the extent required by Applicable Law and Rules, if Merchant amends or terminates its loyalty program, Merchant will provide reasonable notice of such change or termination of its loyalty program to guests; and (f) to the extent required by Applicable Law and Rules, if Merchant terminates its loyalty program, Merchant will not reinstate its loyalty program within a year of such termination unless it has retained sufficient information to reinstate the points of any prior participant in its terminated program. Merchant agrees to send any communications including transactional or commercial messages, to Customers in a manner consistent with the purposes for which the Customer has provided consent or has provided their information.

5. Ownership: Merchant Data, Customer Data & Trademarks

5.1. As between the parties, all QWIZEEN (and/or its licensors) rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, Services, and Professional Services including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of QWIZEEN provided under the Agreement, is expressly intended to remain vested in QWIZEEN (and/or its licensors). Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns and, to the extent any such assignment cannot be made at present, will assign and transfer all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to QWIZEEN  , and acknowledges that QWIZEEN is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in QWIZEEN’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by QWIZEEN.

5.2. Merchant owns all Merchant Data. Merchant hereby grants to QWIZEEN a non-exclusive, royalty-free, fully paid up, and worldwide license to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with the Services including the development of potential offerings or other future Services under consideration by QWIZEEN (whether developed independently by QWIZEEN or through a third party) . Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Law and Rules) of Merchant Data, the means by which Merchant Data is acquired, and any transfer and use of Merchant Data outside of the Services by Merchant or any third party authorized by Merchant. Merchant represents, warrants and covenants that it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by QWIZEEN in relation to the Services. Merchant will not upload or store any data or materials containing any such information in violation of this Section.

5.3 Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both QWIZEEN and Merchant will collect, store and use Customer Data. To the extent Merchant’s use of the Customer Data is outside the scope described in this Agreement or within QWIZEEN’s Privacy Statement, Merchant shall be solely responsible for putting in place any additional controls (e.g. notice, consent) and governance in relation to such use. Each Party’s use of Customer Data shall be in compliance with the Applicable Law and Rules.

5.4. Notwithstanding anything to the contrary in the Agreement, QWIZEEN may create anonymized or aggregated data from Merchant Data, Customer Data and Personal Information that does not identify Merchant, any of your users or Employees or any other identifiable individual. Such aggregated or de-identified data may include data analysis across QWIZEEN, our Merchant customers and partners and may be used for any lawful purposes including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Hardware or Services, the development of new Services or Hardware or otherwise. Upon creation, as between Merchant and QWIZEEN, QWIZEEN shall own and retain all Intellectual Property Rights in and to such anonymized or aggregated data entirely without obligation to Merchant or restriction of any kind.

5.5. Merchant hereby grants QWIZEEN a nonexclusive, royalty-free right and license to use and display Merchant’s Marks on its website, marketing collateral and other public disclosures, or to otherwise identify Merchant as a customer of QWIZEEN. QWIZEEN obtains no rights in the Merchant Marks except for the limited right described in this sub-Section 5.5., and Merchant retains all right, title and interest in and to the Merchant Marks. All use of the Merchant Marks by QWIZEEN will inure to Merchant.

5.6. Merchant agrees and acknowledges that any use or display by Merchant of a trademark or other mark owned by the Payment Network(s) shall comply with the rules and regulations issued by such Payment Network and shall cease use of and remove all such trademark(s) from display upon termination of this Agreement.

5.7 No Development. EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate agreement between QWIZEEN and Merchant prior to the commencement of any such activities. 

6. Marketing, Promotion, and Feedback

6.1 Marketing. QWIZEEN and its affiliates may showcase the availability of Merchant’s Items via the App(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). QWIZEEN (or a party designated by QWIZEEN acting on QWIZEEN’s behalf) may take video and still images for marketing and other efforts related to the App(s) (“Photographs”). Merchant agrees that Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of QWIZEEN or its affiliates. Additionally, Merchant may provide videos, still image or other materials to QWIZEEN or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the App(s) or the marketing and promotion and the availability of your Items via the App(s). Merchant hereby grants QWIZEEN and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Services. QWIZEEN agrees that the Merchant Marketing Materials shall remain Merchant’s sole and exclusive property. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for QWIZEEN to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that QWIZEEN or its affiliates may remove Merchant Marketing Materials from the App(s) if QWIZEEN or its affiliates receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

6.2 Promotions. “Promotion(s)” means offers that are available through the App(s) to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes QWIZEEN to charge Customers for the post-Promotional value of an Item (not including Sales Taxes and applicable Fees). Subject to App(s) functionality, QWIZEEN may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion. 

i) Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that QWIZEEN may make available from time to time, Merchant may create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by QWIZEEN, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by QWIZEEN) either through the use of the Promotion Tool or through the Promotion Schedule (as defined below).

1)    QWIZEEN authorizes Merchant to use QWIZEEN’s proprietary, automated, self-service tool located within the Tools to create Promotions (“Promotion Tool”). If provided access to the Promotion Tool, Merchant agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.

2)    Merchant may create a Merchant Promotion by completing and providing QWIZEEN with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to QWIZEEN by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with QWIZEEN under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative.

ii)    Co-Funded Promotion(s). From time to time, QWIZEEN may agree to fund a portion of Merchant’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree on a written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Merchant is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Merchant Promotion, and QWIZEEN shall issue an adjustment to Merchant’s Item Revenue to account for the amount of the Promotion that QWIZEEN has agreed to fund.

iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule:

1)    Merchant’s Obligations. Merchant will: (A) fulfill the terms of Promotions offered by Merchant (solely or jointly with QWIZEEN) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and (C) upon reasonable request, supply QWIZEEN with marketing materials including but not limited to, photographs, graphics, audio, video, and copy, which QWIZEEN may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live.

2)    QWIZEEN’s Obligations. QWIZEEN will (A) honor and fulfill the terms of Promotions offered by QWIZEEN (solely or jointly with Merchant) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount QWIZEEN has agreed to fund such Promotion; (C) upon reasonable request, supply Merchant with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the App(s); and (D) use good faith efforts to provide Merchant with reasonable information regarding Promotions, which may include, without limitation, the amount Merchant spent on Promotions and the number of Items sold in connection with Promotions.

iv)    Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the App(s), Fee shall be calculated based on the total Retail Value of the order minus the Merchant-funded portion of such Promotion applied to that order. For the sake of illustrative purposes, if Merchant and QWIZEEN each fund $1 of a $2 off Promotion (so the Co- Funded Promotion is funded 50% by each party) on a $10 pre-Promotion order total, the Fee shall be calculated on the post-Promotion amount of $9.

v)    Out of App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the App(s). If a Promotion Schedule authorizes Merchant to market a Promotion out of the App(s), all such marketing materials will be subject to QWIZEEN’s prior review and written approval, which shall not be unreasonably withheld.

6.3 Publicity. Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

6.4 Feedback. Merchant may, but is not obligated to, provide or otherwise make available to QWIZEEN or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to QWIZEEN’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to QWIZEEN or its affiliates, Merchant hereby grants to QWIZEEN and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback. 

7. Billing and Payment

7.1. Merchant will pay all Fees set forth in each Order. All Fees are non-cancelable and non-refundable, except as otherwise provided for herein. Merchant will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.

7.2. Merchant’s Software subscription Fees to access and use the Services will remain unchanged during the Initial Term of this Agreement. However, QWIZEEN reserves the right to change any other Fees and/or processing rates upon thirty (30) days’ prior written notice to Merchant. Such notice will include the effective date of the change(s). Merchant’s continued use of the Services subsequent to any change in Fees and/or processing rates, as applicable, will be deemed acceptance of such changes unless Merchant closes its QWIZEEN Account prior to the effective date of such change and ceases all access to and use of the Services. If Merchant does not accept such Fee and/or rate change under this sub-Section 7.2, then Merchant may terminate this Agreement by providing QWIZEEN written notice prior to the effective date of such Fee and/or rate change, and in such event the Early Termination Fee under sub-Section 8.4 shall not apply (other than the processing fee for Software financing), and Merchant shall only be liable to QWIZEEN for the payment of Fees and/or rates for Services provided through the date of Merchant’s notice of termination.

7.3. All amounts invoiced hereunder are due and payable as specified in the applicable Order. In the event that QWIZEEN inadvertently did not provide Merchant with an invoice, or Merchant did not otherwise receive an invoice from QWIZEEN, Merchant is still responsible for paying any Fees and/or other amounts due based on Services provided. .Merchant remains responsible for all Unpaid Fees plus all reasonable expenses of collection including reasonable attorneys’ fees and costs. Such unpaid invoices, finance charges and expenses may be deducted from the deposit of any Net Sales Proceed under Section 5 of the Payment Processing Terms. Without prejudice to any right to set-off which QWIZEEN may be entitled to as a matter of law, QWIZEEN may set-off any amounts due to Merchant including any Net Sales Proceeds, against any amounts owed or other liabilities of Merchant, now or at any time hereafter due, owing or incurred by Merchant to QWIZEEN under this Agreement.

7.4. All Fees are exclusive of applicable Taxes, or similarly-related assessments or charges. Merchant will be responsible for, and agrees to pay, all applicable sales, use, excise, personal property, services, value added taxes, taxes of a similar nature, and final withholding taxes (excluding personal property and capital taxes on items owned and used by QWIZEEN and excluding taxes based on QWIZEEN’s net income all of which shall be borne by QWIZEEN), imposed by any governmental authority having jurisdiction on any items, goods and/or Services being paid for by Merchant hereunder.

QWIZEEN is not obligated to, nor will QWIZEEN determine whether any relevant Taxes apply, or calculate, collect, report, or remit any Taxes, or provide any corresponding tax documentation in its possession, to any taxing or governmental authority arising from any transaction, and makes no representation or warranty that the Services, Hardware, or Professional Services will enable Merchant to meet the tax requirements applicable to Merchant in a specific jurisdiction. Merchant is solely responsible for determining what, if any, Taxes and Tax laws may apply to them, ensuring the correct and timely payment of the applicable amounts to the appropriate authority, and paying all applicable Taxes regardless of whether such Tax amounts are listed on an Order.

7.5. If in a given calendar year Merchant exceeds $600 in gross Payments, QWIZEEN may report annually to the Internal Revenue Service  and applicable state tax authorities as required by Applicable Law and Rules, Merchant’s name, address, telephone number, Tax Identification Number (including, but not limited to a Social Security Number (SSN), or Employer Identification Number (EIN)), applicable IRS account numbers, the total gross dollar amount of the Payments Merchant receives in a calendar year, and the total gross dollar amount of the Payments Merchant receives for each month in the applicable calendar year, without regard to adjustments for applicable credits, cash equivalents, discount amounts, fees, refunded amounts, or any other amounts, the dates of any transactions, designated merchant category codes, applicable backup withholding details, etc.. Such criteria and thresholds noted above may vary, depending on applicable federal and state law. Merchant further acknowledges and agrees that QWIZEEN may take action in accordance with Applicable Law and Rules including initiating backup withholding, when appropriate.

7.6. If Merchant financed its original license of the Software during the Initial Term, then upon the first Renewal Term and for each Renewal Term thereafter, Merchant’s payment terms for Software Fees shall revert to billed monthly in advance, which QWIZEEN shall collect via ACH debit from Merchant’s Bank Account.

7.7. If Merchant elects to purchase Services through a Pay-as-you-go Subscription, Merchant acknowledges that the Fee offered will constitute and be comprised of Software Subscription Fees and Card processing rates, except as otherwise disclosed in this Agreement or in other applicable terms. Pay-as-you-go subscriptions may be subject to an inactivity Fee, which will be assessed in the event Merchant fails to meet required Card processing minimums. Pay-as-you-go subscriptions do not constitute an offer of credit, nor do they constitute an equipment lease or loan for goods or services provided. Except as otherwise provided in this Agreement, or expressly stated in any other applicable terms, QWIZEEN shall enforce Merchant’s liability for Pay-as-you-go Platform Fees consistent with sub-Section 7.3 herein, and shall not seek recourse against Hardware purchased in a Pay-as-you-go Order.    

8. Payment Processing

8.1. Payment Processing Terms are located at the link set forth in the Definitions Section.

9. Term and Termination; Suspension; Survival

9.1. The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of this Agreement. The initial term of an Order will commence upon the earlier of: (i) the Contract Start Date (as defined in the Order), or (ii) the Go- Live Date and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for remainder of the initial term outlined in the Order (the “Initial Term”). Thereafter, the term of this Agreement with respect to such applicable order(s) shall automatically renew for successive one (1) year periods (each a “Renewal Term”; collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”); provided, however, that any Renewal Term shall be subject to the terms of the then-current version of the Merchant Agreement as in effect on the date such Renewal Term commences and further provided that either party may terminate an Order, and this Agreement with respect to such Order, by providing at least thirty (30) days’ written notice of its intent not to renew prior to the end of the then-current Term.  Merchant hereby acknowledges and agrees that Merchant is responsible to review the Merchant Agreement for updates prior to the commencement of any such Renewal Term, and agrees that entering such Renewal Term confirms Merchant's consent to the terms of the Merchant Agreement as then in effect provided, however, that either party may terminate an Order, and this Agreement with respect to such Order, by providing at least thirty (30) days’ written notice of its intent not to renew prior to the end of the then-current Term.

9.2. QWIZEEN may suspend Merchant's username and password, QWIZEEN Account and access to the Services, and/or may terminate the Agreement upon written notice to Merchant in the event any of the following occur: (a) Merchant fails to make any payment due within thirty (30) days; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the QWIZEEN Account registration requirements, as determined in QWIZEEN’s sole discretion; (c) QWIZEEN determines that Merchant is incurring excessive Chargebacks; (d) Merchant violates Sections 2, 4, 7 or 14; (e) any agreement between QWIZEEN and a payment provider pursuant to which QWIZEEN is authorized to provide access to payment processing services terminates or expires; (f) (1) QWIZEEN determines in its discretion that any change to, clarification or interpretation by a regulatory authority or Payment Network of, or enactment of any Applicable Law and Rules, would render any portion of the Services illegal, otherwise have a material adverse effect upon the Services or a party, or pose unreasonable risk to QWIZEEN or (2) QWIZEEN is directed to terminate the Agreement or the Services by a regulatory authority, payment provider or a Payment Network or (e) for any reason upon ninety (90) days’ prior written notice to Merchant. As determined it its sole discretion, QWIZEEN, its payment provider(s), and/or one or more Payment Network(s) may terminate this Agreement immediately and without notice for any suspected issues that could potentially cause a violation of this Agreement, the Payment Network rules, any law or regulation, or may impose a potential security threat, data breach, fraud or other crime, or damage to the Payment Network(s).

9.3. In the event of a material breach of this Agreement by either party, the non-breaching party will have the right to terminate the applicable Order(s), and/or this Agreement for cause if such breach has not been cured within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach in reasonable detail and the remedy being sought. In the event Merchant terminates this Agreement due to QWIZEEN’s uncured breach, Merchant shall be entitled to a pro rata refund of any Software Fees paid for Services not delivered as of the date of termination, to the extent such Software Fees have been paid in advance.

9.4. By executing an Order and/or QWIZEEN Master Agreement, Merchant agrees to pay QWIZEEN all Hardware and Software Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Locations indicated therein, and for the entire duration of the then-current Term. Unless otherwise agreed to by QWIZEEN, Merchant acknowledges and agrees that it may terminate this Agreement and any applicable Order(s) at any time during the Term, provided that Merchant shall remain responsible for payment of all Fees for Services provided by QWIZEEN through the date of Termination. Additionally, Merchant shall incur and pay 1) an early termination fee equal to the remaining Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, as applicable (“Early Termination Fee”), and 2) any applicable processing fee related to Software financing.

9.5. Upon any termination or expiration of an Order and/or this Agreement, Merchant's right to access and use the Services covered by the applicable Order(s) will terminate. Upon any such termination or expiration, all Sections of this Agreement which by their nature should survive termination or expiration will survive including without limitation, the following Sections: Section 20 (Definitions), Section 4 (Usage Restrictions), Section 5 (Ownership; Merchant Data, Customer Data & Trademarks), Section 7 (Billing and Payments) rights to any payments of Fees or Net Sales Proceeds earned up to the date of termination, Section 10 (Disclaimer of Warranties), Section 11 (Limitation of Liability), Section 14 (Confidential Information), Section 16 (Arbitration), Section 17 (Notices) and Section 19 (General Provisions). Notwithstanding the foregoing, at Merchant's request if received within thirty (30) days of termination of the Order or Agreement for any reason other than termination by QWIZEEN for Merchant’s uncured material breach, to the extent Merchant is otherwise unable to access the information itself, QWIZEEN will permit Merchant to access the Services solely and exclusively to the extent necessary for Merchant to retrieve a copy of Merchant Data, Customer Data, and any other data, materials, and information collected by the Merchant as part of the Services and contained in Merchant’s QWIZEEN Account. Subject to the Payment Processing Terms, Merchant acknowledges and agrees that QWIZEEN has no obligation to retain Merchant Data and that QWIZEEN will have the right to irretrievably delete and destroy Merchant Data after thirty (30) days following the termination of this Agreement. Merchant agrees it will continue to permit QWIZEEN access to Merchant’s Bank Account until all amounts due under this Agreement are paid in full.

10. Representations; Disclaimer of Warranties

10.1. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.

10.2. Merchant represents, warrants and covenants to QWIZEEN that (a) it is a legal resident of, or is a business entity authorized to conduct business in, any jurisdiction in which it operates; (b) the name identified by Merchant when Merchant registered is its legal name or business name under which it sells goods and/or services; and (c) the taxpayer identification number identified by Merchant is its legal taxpayer identification number.

10.3. Limited Warranty. QWIZEEN represents, warrants and covenants to Merchant that, during the Term, the Software Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by QWIZEEN to Merchant, as the same may be updated by QWIZEEN from time to time in the ordinary course of business (together the “Specifications”). Merchant’s sole and exclusive remedy for QWIZEEN’s breach of this limited warranty is limited to QWIZEEN correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Section 9.3 above. Any Hardware sold by QWIZEEN to Merchant hereunder is covered by QWIZEEN’s Limited Warranty Policy available Qwizeen Limited Warranty, which is hereby incorporated by reference and made part of this Agreement.

10.4. QWIZEEN does not warrant that the Services, which may permit Merchant to process payments on a compatible mobile device, will be compatible with Merchant’s mobile device or third-party carrier. Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with its mobile device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and Merchant is solely liable for the payment of all such carrier fees.

10.5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, QWIZEEN AND ITS THIRD- PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. QWIZEEN AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS MERCHANT MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, QWIZEEN AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET MERCHANT'S REQUIREMENTS. MERCHANT ACKNOWLEDGES THAT NEITHER QWIZEEN NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. QWIZEEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, QWIZEEN DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY QWIZEEN, THE SERVICES ARE PROVIDED TO MERCHANT ON AN "AS IS" BASIS.

11. Limitation of Liability

11.1. IN NO EVENT WILL QWIZEEN BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF QWIZEEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.

11.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, QWIZEEN’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO QWIZEEN IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.

12. Indemnification

12.1. QWIZEEN Indemnification. QWIZEEN will indemnify, defend and hold harmless Merchant and its directors, officers, employees, affiliates and agents from and against any and all third-party claims brought against Merchant by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes the copyright or misappropriates the trade secret rights of such third party, and QWIZEEN will pay all costs (including reasonable attorneys’ fees) and damages finally awarded against Merchant by a court of competent jurisdiction as a result of any such claim or payable by Merchant pursuant to a settlement agreement to which QWIZEEN agrees in writing in settlement of such claim; provided, that Merchant (a) promptly gives written notice of the claim to QWIZEEN; (b) gives QWIZEEN sole control of the defense and settlement of the claim; and (c) provides to QWIZEEN, at QWIZEEN's cost, all reasonable assistance. If the Services become, or in QWIZEEN’s opinion are likely to become, the subject of an infringement or misappropriation claim, QWIZEEN may, at its option and expense, either (i) procure for Merchant the right to continue exercising the rights made available hereunder; (ii) replace or modify the Services so that they become non-infringing or non-misappropriating; or (iii) refund to Merchant the portion of subscription fees paid in advance by Merchant for any unused portion of the then-current term of the Services, if any, whereupon QWIZEEN may terminate this Agreement upon written notice to Merchant. Notwithstanding the foregoing, this Section 12.1 shall not apply to any infringement or misappropriation claims arising from (i) designs, specifications, or modifications originated or requested by Merchant, (ii) the combination of the Hardware, Software, and/or Services with other equipment, software or products not supplied by QWIZEEN if such infringement or misappropriation would not have occurred but for such combination, (iii) Merchant’s failure to install an update provided by QWIZEEN at no additional charge, where same would have avoided or mitigated such claim, (iv) allegations of infringement made by a non-practicing entity, (v) the failure of Merchant to follow any instructions given by QWIZEEN to Merchant in relation to such claim, suit, action, or proceeding brought against Merchant, where the instruction would have avoided or mitigated the same, or (vi) any claims that are attributable to Merchant’s gross negligence or willful misconduct. This Section 12.1 represents the sole and exclusive remedy of Merchant and the entire liability and obligation of QWIZEEN with respect to infringement and misappropriation.

12.2. Merchant Indemnification. Merchant will indemnify, defend and hold harmless QWIZEEN and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities, fines imposed by the Payment Networks or by regulatory authorities to the extent permitted under Applicable Law and Rules, costs and expenses whatsoever including all reasonable legal and accounting fees and expenses and all reasonable collection costs incurred by QWIZEEN, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of (a) Merchant’s use of the Services, other than those attributable to QWIZEEN’s gross negligence or willful misconduct, or for which QWIZEEN is responsible as set forth in Section 12.1 above, (b) QWIZEEN’s processing activities on behalf of Merchant, (c) the business of Merchant, (d) any sales transaction conducted by QWIZEEN on behalf of Merchant, (e) any noncompliance with any Applicable Law and Rules by Merchant or its Employees, (f) any non-compliance with Section 15 of this Agreement, (g) Merchant’s, or any Employees’, breach or nonperformance of any provision of this Agreement; (h) Merchant’s or its Employee’s reliance on any report or other information generated through the Services; (i) any Tax assessment or (j) any claims against QWIZEEN related to the use by QWIZEEN of any Merchant Data or any of Merchant’s intellectual property; (k) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (l) Merchant’s failure to provide accurate and complete descriptions or Additional Information for Items including information transmitted through a Device, point-of-sale, or Third Party Access Service, sufficient for accurate Sales Tax calculations; (m) Merchant’s failure to comply with a notice with respect to Unsupported Items; or (n) any claim related to Merchant’s failure to perform obligations contained in Section 1.2 of the Terms of Use for Alcohol Sales, if applicable, except in the case of each of (k)-(m) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of QWIZEEN or its employees, agents or Delivery People.

12.3 Procedure. Each Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

13. Insurance

During the Term and for one (1) year thereafter, the Merchant will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. . All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the QWIZEEN. Upon . QWIZEEN’s request, the Merchant will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of the Merchant under this Agreement.

14. Confidential Information

14.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business under this Agreement. For the avoidance of doubt, QWIZEEN’s Confidential Information includes the Services, Hardware, and Customer Data, and any information relating thereto. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information, in each case except as expressly permitted in Section 5, Section 6, Section 9, or under the Privacy Statement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that the Receiving Party can document (c) is or becomes generally available to the public by Disclosing Party or a third party not bound by a confidentiality obligation; (d) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (e) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (f) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records.

14.2. Notwithstanding any provision of this Agreement to the contrary, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its Representatives or potential Representatives who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential, consistent with the terms of this Agreement; (ii) as required by law (in which case Merchant shall, if permitted by Applicable Law and Rules, provide QWIZEEN with prior written notification thereof and the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure in each case to the extent permitted by applicable law, or (iii) otherwise in accordance with QWIZEEN’s Privacy Statement. The Receiving Party will remain primarily responsible for any breach of this Section 14 by any of its Representatives with whom it shares the other party’s Confidential Information as permitted by this Section 14.2.

The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes QWIZEEN and its Affiliates to disclose the terms of this Agreement to Merchant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement). Upon expiration or termination of this Agreement and as requested by the Disclosing Party, each Receiving Party will deliver to the Disclosing Party (or destroy at the Disclosing Party’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.

14.3 Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Tools and Services including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.

15. Data Privacy & Security

15.1. As part of this Agreement and Merchant’s use of the Services (including the provision and use of Merchant Data and Customer Data), Merchant shall comply with all applicable Data Privacy and Security Laws, and not by any act or omission, put QWIZEEN in breach of the applicable Data Privacy and Security Laws.

15.2. QWIZEEN will collect, process and retain Personal Information pursuant to QWIZEEN’s Privacy Statement, which describes what Personal Information QWIZEEN collects and manages as part of providing our Services. Merchant and its Employees are encouraged to read the Privacy Statement carefully, as it forms a binding part of this Agreement and contains important information about individuals’ rights and how QWIZEEN manages Personal Information.

15.3. Merchant agrees that it will collect, store and use Personal Information collected as part of this Agreement and the Services in a manner consistent with the applicable Data Privacy and Security Laws and the practices described in QWIZEEN’s Privacy Statement. If Merchant elects to use Personal Information beyond the scope of QWIZEEN’s Privacy Statement, Merchant is solely responsible for its compliance with the applicable Data Privacy and Security Laws and any compliance obligations associated with the collection, use or processing of that Personal Information.

15.4. Where requested by QWIZEEN, Merchant shall provide QWIZEEN with reasonable assistance and cooperation in relation to QWIZEEN’s compliance with the applicable Data Privacy and Security Laws including but not limited to support with individual rights requests or notifications from any governmental, regulatory or law enforcement authority pertaining to QWIZEEN and our provision of the Services and use of Personal Information as described in this Agreement. In the event Merchant receives any such request or notification, unless otherwise prohibited by law, Merchant shall notify QWIZEEN and shall not respond to the party making the request.

15.5. Merchant is responsible for implementing and maintaining appropriate technical, organizational and administrative security controls to safeguard Personal Information as well as other data associated with the Services, the Hardware and Merchant’s obligations under this Agreement. For the avoidance of doubt, this includes access controls and ensuring that only those individuals that need access to Customer Data are provided with such access. In all cases, this obligation shall not limit Merchant’s obligations regarding the implementation of any security measures required under the Data Privacy and Security Laws.

15.6. If Merchant (whether directly or through a third party) discovers or becomes aware of a Security Incident, Merchant shall promptly notify QWIZEEN and take any additional steps that are reasonably necessary to remedy any non-compliance with this Agreement. This includes complying with all applicable requirements of the Agreement as well as cooperation with the investigation of the Security Incident. Merchant shall provide reasonable support with remedying a Security Incident when Customer Data is involved. To the extent any Security Incident is attributable to the acts or omissions of the Merchant, Merchant shall bear all costs associated with remedying the Security Incident and complying with its legal obligations under the applicable Data Privacy and Security Laws.

15.7. To the extent permitted under this Agreement, if Merchant utilizes any third parties outside of those engaged by QWIZEEN to perform processing or services related to the Services or Customer Data, Merchant shall ensure that the third-party relationship is subject to a written agreement that contains at least the same level of privacy and security-related obligations imposed on Merchant under this Agreement. In all cases, Merchant shall remain responsible for any acts or omissions of such third parties to the same extent as if such acts or omissions were performed by Merchant.

15.8. As part of this Agreement, QWIZEEN shall, with reasonable notice, have the right to perform an audit of Merchant’s facilities, systems and personnel to verify Merchant’s compliance with this Section if it has a reasonable suspicion of a breach or potential breach of the terms of this Agreement. Merchant will provide full cooperation to QWIZEEN and its Representatives in connection with any such audit.

16. Arbitration

16.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Except where prohibited by Applicable Law and Rules, Merchant agrees that any and all disputes or claims that have arisen or may arise between Merchant and QWIZEEN, whether arising out of or relating to this Agreement or in connection with Merchant’s use of the Services or our websites, shall be resolved exclusively through confidential, final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Merchant may assert individual claims in small claims court, if Merchant’s claims qualify. Merchant agrees that, by agreeing to this Agreement, Merchant and QWIZEEN are each waiving the right to a trial by jury or to participate in a class action. Merchant’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement. In any event, any action or proceeding by Merchant against QWIZEEN relating to any dispute must commence within one year after the cause of action accrues.

16.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. Except where prohibited by Applicable Law and Rules, Merchant and QWIZEEN agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Merchant and QWIZEEN agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

16.3. Pre-Arbitration Dispute Resolution. QWIZEEN is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by contacting QWIZEEN’s support team at QWIZEEN located at SUPPORT@QWIZEEN.IO. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to QWIZEEN should be sent to QWIZEEN LLC 30 N Gould Street, STE R, Sheridan, WY, 82801, Attn: General Counsel. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If QWIZEEN and Merchant do not resolve the claim or dispute, despite good faith attempts, within sixty (60) calendar days after the Notice is received, Merchant or QWIZEEN may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by QWIZEEN or Merchant shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Merchant or QWIZEEN is entitled.

16.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless QWIZEEN and Merchant agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Merchant’s claim is for $10,000 or less, QWIZEEN agrees that Merchant may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video conference hearing or by an in-person hearing as established by the AAA Rules. If Merchant’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

16.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.

16.6. Confidentiality. Except as may be required by law, all aspects of the arbitration proceeding (including its existence), and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

16.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 16.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 16.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.

17. Notices

Except as provided in the Arbitration Agreement, QWIZEEN may give notice applicable to QWIZEEN's general customer base by means of a general notice on the Services portal, and notices specific to Merchant by e-mail to Merchant's address on record in Merchant’s QWIZEEN Account. Notices to QWIZEEN must be sent via registered mail, postage prepaid, return receipt requested, to QWIZEEN LLC, 30 N Gould Street, STE R, Sheridan, WY, 82801, Attn: General Counsel.

18. Force Majeure

Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, pandemic or any other similar event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible as soon as possible and without delay.

19. General Provisions

19.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the State of Florida, excluding its conflicts or choice of law provisions, and controlling U.S. federal law. Except as set forth in Section 16, the parties agree that the federal or state courts in the county of Miami Dade, Florida shall have exclusive jurisdiction to hear and determine any dispute between them. The Uniform Computer Information Transactions Act, and the United Nations Convention on the International Sale of Goods, shall not apply to this Agreement.

19.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement, except that QWIZEEN may modify this Agreement to comply with, and as a result of, amendments to Applicable Laws and Rules. The Section headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement. No joint venture, partnership, employment, or agency relationship exists between QWIZEEN and Merchant as a result of this Agreement or use of the Services.

19.3. Entire Agreement. This Agreement and all Order(s), together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties' entire understanding relating to the Services and the subject matter hereof and thereof, and supersede any prior or contemporaneous, conflicting, or additional communications, whether written or verbal, and will control over any different or additional terms of any non-QWIZEEN ordering document, and no terms included in any such purchase order or other non-QWIZEEN ordering document will apply to the Services or Hardware. The exchange of a fully-executed Order by fax or electronic signature will be sufficient to bind the parties to the Merchant Agreement and such Order. Except as otherwise provided herein, this Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid or unenforceable, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable, then such provision(s) will be deemed to be restated and construed to reflect the original intentions of the parties in accordance with Applicable Law and Rules with respect to the invalid or unenforceable provision(s), and with all other provisions of this Agreement remaining in full force and effect.

19.4. Assignment. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the  sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer including its accounts with QWIZEEN, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section 19.4 will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect.  

19.5. Electronic Signature. Signatures transmitted and received electronically, such as through transmission of a scanned or faxed document, or via secure email or a service such as DocuSign, are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.

19.6. Representatives. Each party shall be primarily responsible for each of its respective Representatives’ compliance with this Agreement.

19.7 Diversity and Inclusion. Merchant will not, in its use of the QWIZEEN Services or the QWIZEEN Apps under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between QWIZEEN and Merchant. Merchant acknowledges and agrees that upon QWIZEEN’S receipt of evidence of Merchant’s discrimination under any of these categories, QWIZEEN will have the right to immediately terminate this Agreement following notice to Merchant.

19.8 Additional Terms. The territory of this Agreement is the United States (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option.

20. Definitions

“Agreement” means collectively: (i) this Merchant Agreement, (ii) the QWIZEEN Master Agreement (only if applicable), (iii) any Order(s) signed by the Merchant, (iv) the End User License Agreement, (v) QWIZEEN’s Limited Warranty, (vi) QWIZEEN Terms of Service, (vii) QWIZEEN Online Terms of Service (only if applicable), (viii) the Privacy Statement, (ix) the Payment Processing Terms, and any other exhibit, addendum, schedule, or attachment to any of the foregoing that is incorporated by reference therein or herein.

“Applicable Law and Rules” means all federal, state, provincial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to Merchant and/or Merchant’s business including without limitation, any applicable tax laws and regulations, the requirements of the Bank Secrecy Act as amended by the USA Patriot Act (or similar law, rule or regulation), the requirements of the Office of Foreign Assets Control, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the Operating Regulations. For the purposes of this Agreement, Applicable Laws and Rules includes Data Privacy and Security Laws.

Merchant shall refer to the following for applicable PCI-DSS and Payment Network requirements, as may be updated from time to time:

• PCI-DSS: www.pcisecuritystandards.org

• Visa’s CISP program: https://www.visa.com/cisp

• Mastercard’s SDP program: https://www.mastercard.com/sdp

• Discover’s DISC website: http://www.discovernetwork.com/fraudsecurity/disc.html

• American Express’ website: https://www.americanexpress.com/us/merchant/merchant-regulations.html

“Card(s)” means most U.S.-issued, and most non-U.S. issued, credit and debit cards with a Visa, Mastercard, Discover or American Express logo, and/or any other card types, if applicable, of which QWIZEEN reserves the right to add or remove at any time in its sole discretion.

“Chargeback” means a transaction that is reversed or charged back to Merchant’s Bank Account if the transaction: (a) is disputed; (b) is reversed for any reason by one or more Payment Network(s), QWIZEEN’s processor, a Customer, or QWIZEEN’s financial institution; (c) was not authorized; or (d) is unlawful, suspicious or in violation of the terms or conditions of the Agreement.

“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and (ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation includingincincluding without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to Recipient that contain, or are based on, in whole or in part, any of the information described in this definition.

“Customers” refers to Merchant’s customers or guests.

“Customer Data” means data and information, which may include Personal Information, collected by QWIZEEN via the Services, such as when a Customer enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) Card information; (iv) Customer purchase history; and (v) location information.

“Data Privacy and Security Laws” means all federal, state, provincial, regional and local laws, regulations and rules imposed by any government, agency or authority in relation to the processing and security of Personal Information including but not limited to the European Union’s General Data Protection Regulation and the California Consumer Privacy Act of 2024 as amended, replaced or superseded from time to time.

“Effective Date” means the date of last signature of an Order Form or QWIZEEN Master Agreement, as applicable.

“Employees” means Merchant’s employees, agents and contractors who are authorized to use the Services.

“End User License Agreement” or “EULA” means the additional Terms of Service applicable to Merchant’s and its Employees’ use of the Services including without limitation, the QWIZEEN App, available at Qwizeen Limited Warranty.

“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services, Professional Services and Hardware.

“Fees” means any fees outlined in an Order including without limitation, fees for Software, Hardware and Professional Services, and amounts in respect of Card processing rates.

“Force Majeure Event” has the meaning ascribed to it in Section 18.

“Go-Live Date” means the actual date upon which Merchant begins using the Services and is capable of processing Payments in a live production environment (if applicable).

“Hardware” means any terminal, tablet, kitchen display screen (“KDS”), switch, router, card, cable, wall mount, printer or other item of physical hardware, as made available by QWIZEEN, and purchased under an Order.

“Location(s)” means the actual number of locations for which Merchant is agreeing to purchase and/or license, as applicable, the QWIZEEN Hardware, Services and/or Professional Services, as reflected in an Order.

“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.

“Merchant” means the contracting entity listed on the applicable Order Form or QWIZEEN Master Agreement, as applicable.

“Merchant Data” means any files, graphics, images, text, emails, data or other information submitted by Merchant in the course of using the Hardware and Services and/or collected by QWIZEEN including without limitation Merchant’s name, address, contact information, Employee information, products, loyalty program information, logos, promotional information, advertisements, transaction details and other information or material submitted by Merchant to QWIZEEN through the Services, exccluding Customer Data. Merchant data may include Personal Information, whether from Merchant’s Employees, existing customer information or otherwise.

“Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to QWIZEEN for use with the Services.

“Merchant’s Bank Account” means the bank account (or accounts) designated by Merchant on the Order for the facilitation of transactions, settlement of Net Sales Proceeds and/or payment of Fees hereunder.

“Net Sales Proceeds” means funds remitted by QWIZEEN to Merchant resulting from Payments, less all applicable Fees due and owing relative to the applicable transaction.

“Off-Line Mode” shall have the meaning provided in the Payment Processing Terms.

“Operating Regulations” means the collective body of Card brand and payment network by-laws, operating requirements and/or all other rules, policies and procedures, as each may be amended or supplemented from time to time including but not limited to the Payment Card Industry Data Security Standards, the VISA Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by a Card brand or payment network.

“Order” or “Order Form” means any QWIZEEN ordering document (including any online order) specifying the Services, Hardware and Professional Services purchased and/or licensed hereunder, as mutually agreed to and accepted by QWIZEEN. The Order may also contain the merchant application and related data.

“Pay-as-you-go Subscription” means an agreement to purchase QWIZEEN Services where the Merchant agrees to pay a Platform Fee based on usage of the Services, as well as any other applicable Fees as may be disclosed to the Merchant. 

“Payment Network” means American Express Travel Related Services Company   (“American Express”), DFS Services, LLC (“Discover”), Mastercard International Inc. (“Mastercard”), China UnionPay Co. Ltd., and/or Visa Inc. (“Visa”), and/or any other payment networks that QWIZEEN may utilize in its sole discretion.

“Payment Processing Terms” or “Payment Terms” means the then-current version of the processing terms and conditions available at Qwizeen Terms and conditions

“Payments” means a Card payment made to Merchant by a Customer.

https://www.poynt.com/terms-of-use

https://www.poynt.com/terms-payfac

“Personal Information” means any information that relates to an identified or identifiable individual. Depending on the applicable Data Privacy and Security Laws, Personal Information may include, but is not limited to a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses and location-based information.

“Privacy Statement” means the then-current version of QWIZEEN’s Privacy Statement available at Qwizeen Privacy statment.

“Professional Services” means any implementation services and/or training provided by QWIZEEN to Merchant pursuant to an Order.

“Representatives” means a party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), contractors and third-party service providers.

“Reserve” or “Reserve Account” means an amount of Merchant funds designated by QWIZEEN and/or its payment providers that must be held and maintained by QWIZEEN and/or its payment providers, or by Merchant if directed by QWIZEEN, in order to protect QWIZEEN from risks related to Merchant’s acts or omissions as more fully described in Section 8 of the Payment Processing Terms.

“Security Incident” means any accidental or unlawful destruction, loss, alteration, theft, unauthorized disclosure of, or access to, Personal Information.

“Services” means QWIZEEN’s websites, Software, the QWIZEEN Platform, QWIZEEN Apps, supported integrations with third parties, customer support, and the Payment Processing services described under Section 7 (Payment Processing) of this Agreement or any other current or future services offered by QWIZEEN. “Software” means QWIZEEN’s point-of-sale restaurant, hospitality and retail management system made available to Merchant via the QWIZEEN Platform including both online and offline components, products, services, features, content, and updates related thereto.

“Specifications” means the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by QWIZEEN to Merchant.

“Taxes” means taxes, levies, or duties imposed by taxing authorities.

“Term” shall have the meaning provided in Section 9.1.

“QWIZEEN Account” means Merchant’s account with QWIZEEN.

“QWIZEEN Platform” means QWIZEEN’s online and offline Software either installed on Hardware, or made available for download by Merchant online, that enables Employees and Customers to interface with, access and use the Services.

“QWIZEEN Apps” means, collectively, mobile applications made available by QWIZEEN as part of the QWIZEEN Services, for download by Merchants, Employees or Customers, as applicable, that enable Merchants, Employees and Customers to interact with, access and use the Services.

“QWIZEEN Limited Warranty” means the limited warranty for Hardware and Software extended to Merchant by QWIZEEN, and available at QWIZEEN Merchant Agreement.

“QWIZEEN Master Agreement” means a master services agreement that QWIZEEN may enter into with select merchants that contains certain terms, conditions, and/or fees or other arrangements agreed upon by a particular merchant and QWIZEEN.

“QWIZEEN Digital Ordering Terms” means the terms and conditions governing the QWIZEEN Apps and associated website, software, and other products and services provided by QWIZEEN to enable Guests to make Purchases from Merchant (collectively, “QWIZEEN Digital Ordering Services”), which are available at QWIZEEN SIGN-UP AND ORDERING AGREEMENT.

https://qwizeen.io/privacy-statement

https://developer.doordash.com/en-US/terms/v1/1/