1. iFlare is a license holder for Operating Money Service (License No.:17-01-02054) under Section 30, Cap 615 of Hong Kong Law, while QFPay is an Affiliate of iFlare under Common Control.
2. The Companies operate a payment and settlement service platform, which is dedicated to providing Payment Services to merchants; and
3. The Merchant wishes to appoint the Companies, and the Companies now agree to provide Payment Services to the Merchant set forth in this Agreement.
QR code Acquiring Services
Unless otherwise specific, the following terms herein shall be defined as follows:
1.1. Affiliate means the type of inter-company relationship in which one company owns less than a majority stake in the other company's stock;
1.2. Actual Term means the period starting from the effective date to the date of termination;
1.3. Acquiring Device means the device with communication function, which is installed by the Merchant and can be used to scanning or to displaying QR Code or Barcode, it can be used to interacting with financial transaction information and the exchange information according to the payment order, including online payment and offline payment;
1.4. Agreement means this agreement and includes all schedules and other attachments;
1.5. AML means anti money laundering refers to a set of procedures, laws and regulations in Hong Kong designed to stop the practice of generating income through illegal actions;
1.6. APP ID means the account number of the Merchant APP which can manage the information of payment;
1.7. Application Form means QFPay Payment Express Onboarding Application Form attached in Appendix 1.
1.8. Business Day means a day when banks in Hong Kong are open for business, other than:
1.8.1. a Saturday or Sunday;
1.8.2. a public holiday in Hong Kong and the PRC; or
1.8.3. a day on which a tropical cyclone warning number 8 or above or a "black" rain storm warning signal is hoisted in Hong Kong at any time between 10:00 am and 7:00 pm Hong Kong time.
1.9. Customer or Electronic Payment User means the Merchant’s customer who purchases products and/or services by using Payment Services through the Company’s Electronic Payment Platform;
1.10. Electronic Payment Wallet means an electronic device or online service that allows an individual to make electronic transactions.
1.11. Merchant APP means a mobile application developed and maintained by the Company for Payment Service;
1.12. Merchant ID means a merchant account number for the Merchant to log onto the Electronic Payment Platform and Acquiring Device;
1.13. Settlement Period means in respect of a transaction, the period from the day when such transaction takes place to the next business day;
1.14. Electronic Payment Platform means a platform operated by the Company which it helps the Company to provide payment solutions services to the merchants;
1.15. Payment Service means the services provided by the Company to the merchants in a variety of payment methods;
1.16. Service Fee means the service fee of Payment Services;
1.17. Transaction Value means in respect to each transaction, the amount (including discount) charged by the Merchant to the Customer in respect of the relevant product and/or services through system interface;
2. SERVICE FEE
2.1. All Service Fee payable to the Companies under this Agreement is immediately due and paya-ble on provision of the relevant Payment Services to the Merchant. The Merchant shall pay Service Fee to the Companies as listed in the Application Form and / or mutually agreed in written form and the Service Fee will be calculated and rounded up to the nearest 10 (Ten) Hong Kong cents.
2.2. If there is a policy adjustment in relation to this Agreement from the relevant regulatory authorities or cooperation institutions or there is any change in laws or regulations which may impact on performance of this Agreement, the Company is entitled to unilaterally adjust the applicable rate as set out in the Application Form for Payment Services and shall notify the Merchant by written notice. The Merchant acknowledges and agrees that if the Merchant does not raise written objection to the adjusted applicable rate for Payment Services within fourteen (14) working days after receiving the written notice from the Company, the adjusted applicable rate shall apply.
2.3. The Companies reserve the right to adjust the Service Fee to the Merchants.
3.1. Safekeeping of Merchant ID, APP ID and its password
3.1.1. The Merchant shall take effective measures to properly keep its Merchant ID, APP ID and its password and shall not disclose such information to any party and for any party to use such information in any manner whatsoever.
3.1.2. The Merchant shall be responsible for managing and maintaining its Merchant ID, APP ID and its password. The Merchant shall also maintain effective technical protection for the Acquiring Device to ensure that it is safely kept and used.
3.2. Notification of Merchant ID, APP ID and its password
3.2.1. If the Merchant has leaked the Merchant ID, APP ID and its password are subject to unauthorized use such as being stolen or assumed etc., the Merchant shall immediately report to the Company.
3.2.2. Upon receipt of formal notification of leak from the Merchant, the Company is entitled to, after verifying the identity information of the Merchant remain available, proceed with the procedures for formal notification of leak for the Merchant. The formal notification of leak shall take effect upon the time at which the Company expressly notifies the Merchant by email that “the formal notification of leak has taken effect”. The Merchant shall be liable for consequences of all operation under Merchant ID before the formal notification of leak has taken effect. The account payment function of Merchant ID will be suspended after the formal notification of leak has taken effect, but account receivables still be remitted into such account.
3.3. Upon notification of leak and cancellation of notification of leak, the Parties shall communicate with each other by telephone number or e-mail address specified in this Agreement. The Merchant acknowledges that, in order to avoid any malicious notification of leak or cancellation of notification of leak, the Company only recognizes the notification of leak through effective means mentioned above.
3.4. The Parties shall ensure the security of their respective computer systems and the related procedures and undertake that their respective computer systems and the related procedures are free from “trapdoor”, “logic bomb”, “data theft” and any software which may threaten the system security of the other Party.
4. RIGHTS AND OBLIGATION OFTHE MERCHANT
4.1. The Merchant shall honestly and truthfully provide information on the qualifications of the Merchant to the Company, including but without limitation to basic information on business and operation, business license (or an identification documentation issued by a competent administrative certifying that the company is legally registered in accordance with the laws of its place of registration), ICP (Internet Content Provider) License, identification of the contact person or authorized representative, the letter of settlement bank account information, corporate e-mail address (other than personal e-mail account), etc. Moreover, if the Merchant is engaged in the business which needs to obtain special license in accordance with the laws or regulations of relevant country or region where the Merchant located, the Merchant should also provide the relevant qualification document.
4.2. The Merchant shall be responsible for keeping the Point-of-Sales (“POS”) machine containing Merchant APP and Acquiring Device in good condition.
4.3. The Merchant shall not leak or transfer the interface technology, security protocol or certificate provided by the Company to a third party for any purposes outside the scope of this Agreement or pass off third party’s transaction as its own transaction to settle account with the Company.
4.4. The Merchant shall keep the log-in names and passwords for Electronic Payment Platform and Merchant APP properly. All actions of the Electronic Payment Platform and the Merchant APP are deemed as those of the Merchant.
4.5. The Merchant undertakes that Payment Services to be made is based on real transaction, namely that the Merchant needs to provide sufficient evidence to prove the existence of transaction relationship between the Customer and the Merchant.
4.6. The Merchant shall ensure the legitimacy, authenticity, accuracy and completeness of the order information. When accepting order from the Customer, the Merchant shall record, including but not limited to the product name, product number, price per unit, total price charged, delivery information of the product ordered and the Customer’s information.
4.7. The Merchant shall properly keep the relevant transaction data and proof, including but not limited to the order and the relevant receipt signed by the Customer when accepting the goods for at least seven(7) years following the date on which the transaction takes place.
4.8. If the Merchant changes its registered address, suspends its business, or changes its domain name or contact number and its other information, it shall notify the Company in advance. The Company is entitled to suspend the service according to specific circumstances, including but not limited to selling prohibited goods and/or services, and complaint and dispute resulting from the failure to give timely notice shall be assumed by the Merchant.
4.9. The Merchant is responsible for the safe use of the Acquiring Device, bearing the resulting equipment cost and communication cost. The Merchant should ensure the confidentiality of the information transmitted in the data transmission process and that the Acquiring Device is not used for any purpose other than the uses specified in this Agreement. The requirements for installation of the Acquiring Device include:
4.9.1. Acquiring Device position should be stable, safe and easy to operate;
4.9.2. Acquiring Device should not be exposed to direct sunlight, high temperature, dampness or be positioned near strong magnetic field, and power supply as well as communication lines should be consistent with Acquiring Device application; and
4.9.3. Other conditions required for normal use of Acquiring Device. If the installation conditions do not meet the above requirements, which result in Merchant’s inability to provide the Payment Services to its Customer, it shall be the Merchant’s responsibility and the Company shall not be held responsible for the result.
4.10. The Merchant use the Acquiring Device within the scope of the Agreement. Without the Company's written consent, the Merchant shall not transfer, rent, lend, mortgage, pledge, lien orin any other way dispose of the Acquiring Device. The Merchant shall not transfer the Acquiring Device arbitrarily or move it to the other place of business or exchange between different cashiers, otherwise, the Merchant shall take responsibility of any direct loss incurred by the Customer and the Company.
4.11. The Merchant shall paste, display in a prominent position, hang and maintain relevant logo provided by the Company identifying the Acquiring Device in its place of business or official website. The Merchant shall only use related business logo and trademark for the purpose in accordance with this Agreement.
4.12. The Merchant shall only use the Acquiring Device and the acquiring bank settlement account for the purpose in accordance with this Agreement and shall not engage in or assist others in committing any commercial fraud or illegal activities.
4.13. The Merchant will not use the Payment Services beyond the Merchant’s business scope registered with the Company.
4.14. The Merchant shall not reprint, copy, cut out or tamper with the contents on the website of the Company or produce derivative products in relation to such contents without the written authorization from the Company. Without the prior written authorization from the Company, the Merchant shall not produce derivative products in relation to such contents in the Electronic Payment Platform and/or the Merchant APP.
4.15. The Merchant shall actively take precautions against unauthorized transaction of the Customer, and promptly resolve problem and issue relating to customer service. In the event of loss suffered by the Company or the Customer arising from the course of transaction, including but not limited to deceptions, fraud, theft, disguised transaction, denial of transaction, chargeback, account information leakage, violation of laws stated in clause 13, rules and regulatory requirements, breach of commitment to the Customer, breach of contractual obligations prescribed in the Agreement; the Merchant shall cooperatively investigate the cause of the claim and be held responsible for such claim.
4.16. The Merchant shall comply with all Applicable Laws on anti-money laundering (“AML”) and counter-terrorism financing (“CFT”). The Merchant shall fully cooperate with the Company’s reasonable due diligence of the Company’s AML and/or CFT policies and procedures, including but not limited to the review of sanctions and politically exposed person, monitoring and reporting of suspicious transaction.
4.17. The Merchant shall comply with all Applicable Laws, rules and regulatory requirements and the Personal Data (Privacy) Ordinance (Cap. 486 of Hong Kong Legislation).
5. RIGHTS AND OBLIGATION OFTHE COMPANY
5.1. The Company is responsible for the development, operation and management of Payment Services. Except as otherwise provided by laws, the Company is entitled to add, delete or otherwise change any of terms and conditions of Payment Services from time to time. The Company shall reasonably provide advance notice to the Merchant prior to adding, deleting or changing any terms and conditions of the Payment Services unless such change is not within the Company’s control.
5.2. The Company provides the Merchant with the Payment Services only. The Merchant shall handle any disputes between Merchant and its Customer and/or third party and the Company shall not be held responsible for such dispute.
5.3. The Company has rights to periodically review the Merchant’s business and/or its compliance with the AML and/or CFT policies and procedures. In the event of any change of information and/or business of the Merchant; the Merchant shall notify the Company as practical as possible. The Company shall retain its absolute discretion to immediately terminate this Agreement if such change induce the Company to reasonably believe that the Merchant can no longer complete his side of bargain, fulfill its contractual obligations prescribed in this Agreement, or comply with Applicable Laws, rules and regulatory requirements of the relevant government department and administration of industry and commerce.
5.4. The Company shall have rights to review the business type of the Merchant. The Company shall have rights to suspend and/or terminate the provision of the Payment Services if the Merchant engages in any activity in breach of this Agreement and/or the Applicable Laws, rules and regulatory requirements.
5.5. Where the Merchant has not generated any transaction amount by the Payment Services for ninety (90) consecutive days, the Companies shall have rights to terminate this Agreement, assuming the Merchant will be liable for the termination cost (if any).
5.6. The Merchant who uses the Payment Services shall be deemed as authorizing the Company to collect and use in a reasonable manner any information or data generated during The Merchant’s use of Payment Services, including but not limited to identity information, account information and transaction information. In order to enhance the service, the Company shall have rights to apply the above-mentioned information or data to the business development and products improvement.
5.7. The Company shall promptly notify the Merchant by written notice in the event of reprinting, copying, cutting out or tampering with the contents on the website of the Merchant or producing derivative products in relation to such contents.
5.8. The Company shall comply with Applicable Laws on AML and CFT and reasonable due diligence Company’s AML and/or CFT policies and procedures.
5.9. The Company shall comply with all Applicable Laws, rules and regulatory requirements and the Personal Data (Privacy) Ordinance (Cap. 486 of Hong Kong Legislation).
6. SETTLEMENT OF TRANSACTION
6.1. The Company shall, after deducting all Service Fee payable to the Company from the corresponding transaction payment of the Merchant, transfer the balance to the bank account designated by the Merchant as listed in the Application Form.
6.2. In the event of any change of the bank account of the Merchant; the Merchant shall notify the Company by written notice and provide any information required by the Company as practical as possible.
6.3. The settlement threshold to the Merchant by the Companies are listed in the Application Form. If the total amount of balance of all Transaction Value to be transferred by the Companies to the Merchant under Clause 6.1 in any Settlement Period is less than the settlement threshold listed in the Application Form, such settlement payment shall be accrued to the next Settlement Period.
6.4. The payment transaction data shall be kept for twelve (12) months on Electronic Payment Platform and available for free access and download by the Merchant. The Merchant shall promptly download the transaction data and file the same.
6.5. The Merchant acknowledges and agrees that the actual time of receipt of payment time is subject to operation and Settlement Period of the intermediary banking system.
6.6. The Company shall have rights to adjust the settlement period on ground of the Merchant’s state of operation, adjustment of business and actual payment status; the Company shall notify the Merchant via e-mail in advance.
6.7. The handling fee for transfer of settlement payment calculated in Hong Kong Dollar incurred to the Merchant from the Company’s bank to the Merchant’s bank shall be borne by the Company, and all other charges such as the costs of receiving banks shall be borne by the Merchant.
6.8. The Company reserves the right to suspend settlement to you. Examples of situations where the Company may do so are: (i) when the Company is instructed to do so by the regulatory bodies; (iI) where there are pending, anticipated, or excessive chargebacks, refunds, reversals, disputes or invalidated payments;(iII) in the event that the Company suspects or becomes aware of suspicious activity; or (iv) where the Company is required by Laws or court order. The Company has the right to withhold settlement upon completion of inspection. The Company will work with the relevant bodies to communicate the general reason for withholding the settlement and give you a timeline for releasing the settlement and any necessary steps the Merchant is required to take.
7.1. The Merchant shall ensure that any refund is only effectuated through the system interface provided by the Company, otherwise the resulting dispute and risk shall be borne by the Merchant accordingly.
7.2. Refund arising from the transactions of the Merchant shall be handled in accordance with the following provisions:
7.2.1. When making a request to the Company for refund, the Merchant shall have sufficient deposit for the refund in its account. The Company shall complete the refund by way of deducting the refund amount from the account of the Merchant within a reasonable period;
7.2.2. If the refund cannot be deducted as a result of the insufficient balance of unsettled fund, the Merchant shall make further written refund request to the Company until the amount of unsettled fund is sufficient to be deducted;
7.2.3. Refund period shall be ninety (90) calendar days; and
7.2.4. The Company shall not charge for handling fee for transaction. However, if the designated bank of the Merchant requires the Company to pay for the relevant fee, the Company may paysuch fee in advance, but it shall solely be borne by the Merchant by way of deduction from its unsettled fund.
8.1. For any inquiry notice and request regarding transaction from the Company, the Merchant shall reply and provide the original receipt and relevant transaction record to the Company via e-mail within three (3) working days after receiving such notice from the Company.
8.2. Each Party should assist in handling properly the complaint on the Payment Services and implementing solution put forward by the counterpart.
8.3. If the Merchant fails to comply with the clause 8.1 and / or any transaction of the Merchant is under Chargeback dispute, the Companies reserve the right to withhold any set-tlement without any prior notice.
9.1. “Confidential Information” shall mean any and all information directly or indirectly concerning the Disclosing Party(as defined below), whether written or oral, regardless of format or medium, furnished to or acquired by the Receiving Party (as defined below) or the Receiving Party’s shareholders, directors, officers, employees, advisors, consultants or agents (collectively, its “Representatives”).
9.1.1. “Disclosing Party” shall mean the Party disclosing Confidential Information to the other Party, and shall include any person or entity, directly or indirectly, that controls, is controlled by, or is under common control with such Party.
9.1.2. “Receiving Party” shall mean the Party receiving Confidential Information from the other Party.
9.2. To the extent consistent with the foregoing, Confidential Information includes without limitation, the existence and terms of this Agreement, lists of any information about a Party's executives and employees, marketing techniques and information, price lists, pricing policies, business methods, contracts and contractual relations with customers and suppliers, computer software programs (including object code and source code), data base technologies, systems, structures and architectures, trade secrets, business acquisition plans and new personnel acquisition plans, including all photocopies thereof. Confidential Information also includes all notes regarding, extracts from, compilations of, and other materials or media containing, based upon, or derived from the foregoing information that are prepared by or on behalf of either Party, including all photocopies thereof.
9.3. Confidential Information also include information belonging to a third party such as customers or suppliers or potential customers or suppliers, of the disclosing party.
9.4. Receiving Party shall only use Confidential Information of the Disclosing Party to the extent necessary for the performance of its obligation or exercising its right under this Agreement and/or the transaction contemplated under this Agreement.
9.5. Receiving Party may only disclose Confidential Information to its employees and legal and accounting advisers having a need to know and who are under non-disclosure obligations no less restrictive than in this Agreement. Receiving Party will advise such employees and legal and accounting advisers who receive Confidential Information of its confidential nature and will co-operate with Disclosing Party in fully enforcing any such non-disclosure obligations. Receiving Party shall not disclose Confidential Information to any other third party without the prior written consent of Disclosing Party.
9.6. Receiving Party shall protect the disclosed Confidential Information in trust and the strictest confidence and protect it in accordance with a standard of care which shall be no less than the care it uses to protect its own information of like importance but in no event with less than reasonable care.
9.7. Upon the written request of Disclosing Party, Receiving Party will return or destroy(at Disclosing Party’s election) all Confidential Information received (including all copies) and provide Disclosing Party with documentation attesting to that fact.
9.8. Receiving Party shall notify Disclosing Party of any unauthorized use or disclosure of the Confidential Information. In the event of a breach, or threatened breach, by a Party of this clause 10, pecuniary damages may not be sufficient relief; the Disclosing Party shall therefore have rights to enforce its rights by specific performance or injunction proceedings, in addition to any other rights or remedies which it may have under Applicable Laws or equity.
9.9. Obligations of Receiving Party under this clause 9 will continue:
9.9.1. Indefinitely in the case of any Confidential Information which is software; or
9.9.2. For a period of five (5) years after termination or expiry of this Agreement in the case of other Confidential Information.
9.10. The obligations under this clause 9 will not apply to any information which is:
9.10.1. Available to the public other than by breach of this Agreement by Receiver;
9.10.2. Rightfully received by Receiver from a third party without proprietary or confidential limitations;
9.10.3. Independently developed by Receiver; or
9.10.4. Known to Receiver prior to first receipt of same from Discloser.
9.11. This Clause9 will not apply to prevent Receiving Party from disclosing Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted todo so, Receiving Party notifies Disclosing Party promptly on receiving notice of such requirement, and asserts the confidentiality of the relevant Confidential Information to the body requiring disclosure.
9.12. Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this clause 9 are granted to the other Party, or to be implied from this Agreement.
10.1. Any Party in breach of contractual obligations prescribed in this Agreement constitutes a breach of contract.
10.2. The Company shall have rights to unilaterally terminate this Agreement and require the Merchant to assume responsibility for loss and/or compensation where the Merchant:
10.2.1. Is directly or indirectly involved in any fraud;
10.2.2. Cannot conduct normal operations due to deteriorated operating and financial situations;
10.2.3. Operates in violation of the relevant rules, and refuses to make corrections after being pointed out;
10.2.4. Unreasonably rejects or intentionally delays the query and inspection requests of the Company;
10.2.5. Is in bankruptcy proceedings, is dissolved, or its business license is revoked;
10.2.6. Engages in counterfeit card transactions or malicious defaults of payment;
10.2.7. Commits any act that harms the interest of the Company;
10.2.8. Breaches this Agreement, or engages in illegal business by using services provided by the Company; or
10.2.9. Involves in risk events or abnormal transactions in the Company’s judgment.
10.3. The Merchant shall acquire the data communication required for the use of the Electronic Payment Platform and be responsible for its functioning, cost and security.
11. FORCE MAJEURE
11.1. Force majeure means an event that is unforeseeable, unavoidable, insurmountable and beyond the reasonable control of the affected Party. The affected Party shall promptly notify any effect caused by force majeure to the performance to this Agreement by written notice. According to the force majeure’s impact on the performance of this Agreement, the Parties shall determine whether to revoke this Agreement, exempt the performance responsibility in part, or delay the performance. In the event of Party’s failure to perform this Agreement due to force majeure, it shall promptly take measures to prevent further loss, and promptly notify the counterpart by written notice to mitigate the loss that may cause to the counterpart; otherwise, such Party shall indemnify the counterpart further loss incurred.
11.2. In addition, considering the special nature of the Internet, the Parties may be exempted from liabilities in any of the following situations that resulted in the Company’s failure to perform its obligations under this Agreement, including but not limited to:
11.2.1. Hacker attacks, and the invasion or outbreak of computer virus;
11.2.2. That the computer system is damaged, paralyzed or unable to be used normally and results in the loss of information or records, and that The Company is unable to provide the services under this Agreement;
11.2.3. Significant impact resulted from the telecom department’s technology adjustments;
11.2.4. Termination of service due to government regulations; and
11.2.5. Other reasons that are not attributable to the Parties.
11.3. Any Party that encounters the aforementioned force majeure events shall promptly notify the counterparty of such event by written notice. The Parties shall then decide whether to continue the performance of this Agreement in accordance with the degree of the impact that such event contributes to the performance of the Agreement.
12. RISK ALERT AND SPECIAL PROVISIONS
12.1. The Parties are fully aware of the current situation that “the Chinese domestic e-commerce environment is not yet mature, and the e-commerce legislation and the credit system is imperfect” and risks of conducting e-commerce business. Both Parties undertake to take reasonable risk prevention measures to avoid or minimize the cyber and e-commerce risks.
13. APPLICABLE LAWS
13.1. This Agreement shall be governed by and construed in accordance with the Laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“HKSAR”) and the Parties hereby irrevocably submit to the exclusive jurisdiction of the HKSAR courts.
14. TERMS AND AUTOMATICAL RENEWAL
14.1. This Agreement shall enter into force for three (3) years as of the date of signature and sealed by both Parties.
14.2. In the event of Parties’ failure to request in writing for termination of this Agreement one (1) month prior to the first and subsequent expiration of this Agreement, this Agreement shall be deemed to be extended for three (3)years automatically subject to no limitation.
14.3. The clauses with respect to the refund and confidentiality shall survive in the event of automatic renewal of this Agreement, and the Parties shall continue to perform accordingly.
15. RIGHTSOF THIRD PARTIES
15.1. A person who is not a party to this Agreement has no rights (Rights of Third Parties) Ordinance (Cap.623 of Hong Kong Legislation) to enforce any terms of this Agreement.
16.1. Any addition or amendment to the Agreement shall be made in writing after being signed and sealed by the Parties.
16.2. The Agreement shall include Appendix 1 and respective addendum(s).
16.3. The Appendices hereto shall form an integral part of the Agreement and shall have same legal effect as the text of the Agreement. In the event of any inconsistency between the Agreement and the schedules, the schedules shall prevail.
16.4. The Agreement is executed in two (2) counterparts and each Party shall hold one set of the original, which shall have the same legal effect.
16.5. Unless otherwise agreed by the Parties, all notices hereunder shall begiven by courier service, registered mail or email. All notices and communications shall be sent to the addresses or emails set forth below:
The Company: QFPay Haojin Fintech Limited & iFlare Hong Kong Limited
Address: Units 1207-1211, Tins Enterprises Centre, 777 Lai Chi Kok Road, Hong Kong
Telephone: +852 2613 9299
Facsimile: +852 2771 5195
Attention: compliance team
Appendix 1 – Application Form
Appendix 1 shall be referred to the Application Form. The Merchant shall fill in the information in accordance with the Payment Services being applied for and provide the required documents based on the Required Documents Checklist (the “Due Diligence Documents”) of the Application Form for Know-Your-Customer (“KYC”) procedures.
Appendix 2: Merchant’s Obligations
1. Covered Area
Services covering the jurisdiction of the HKSAR, the Company has the right to decide on individual cases whether to provide services.
2.1 The Merchant shall continue placing promotional items in an eye-catching position at the cashier’s counter and affix their electronic payment stickers at the entrances and exits. If the arrangement is not fulfilled, the Companies will propose rectification. If it is invalid, the Companies has the right to cancel the service.
2.2 If the Merchant uses merchant static QR Code solution, the Merchant shall ensure that the electronic payment QR Code stickers are completely and safely placed at the right place and it cannot be overlaid by any item and materials for avoiding QR Code is torn off, altered or replaced, otherwise the Merchant shall be solely responsible for any negligence damages and the Company’s losses.
3. Due Diligence
3.1 The Companies are responsible to perform due diligence before accepting a Merchant as its customer to assess the customer’s risk level (“Due Diligence Obligations”). The Merchant must comply with Due Diligence Obligations of the Companies in order to successfully register as a registered Merchant effectively.
3.2 The Merchant is required to submit the Due Diligence Documents for KYC procedures. If the Company needs further information, the Merchant has to cooperate to provide relevant documents or information pursuant to the request of the Company.
3.3 After a successful registration, if unusual transactions occur in future transactions, the Merchant must cooperate to provide the relevant transaction information upon the Company's request. If the Merchant fails to comply with, it will be regarded as a material breach of this Agreement
4.1 Payment of Service Fee
The Merchant agrees that the Company may deduct, in whole or in part, any Service Fee that is due and payable but has not otherwise been paid by the Merchant, from the relevant funds available for Settlement.
If the Company charges the Merchant more than the Service Fee set forth in this Agreement, the Company will return the additional Service Fee charged to the Merchant as soon as practicable. If the Company charges Merchant less than the Service Fee set forth in this Agreement, then the Merchant shall pay the outstanding Service Fee to the Company immediately upon the Company’s request.
5. Settlement Process
5.1 Bank Account
The Merchant will bear all losses arising from the incorrect information of its banking details provided in the Agreement.
5.2 Transaction List
(A) For the Merchant who use the Merchant QR Code solution, the Company will provide an electronic payment collection application, which memory has twelve (12) months of transaction record; or
(B) By The End Of Business day, the Company will make available for download by Merchant from data base. The Company will make a list of all recorded transaction available during the immediately preceding day for which Payments have been received (the “Transaction List”) from data base for the Merchant to download. The Transaction List shall set out the Company’s determination of the Settlement Fund and the Net Settlement Amount, and in the absence of manifest error or valid dispute by Merchant shall be final and binding on Merchant in relation to such amounts.
5.3 Fund Transfer
Subject to the Company exercising its rights to withhold, deduct or set off in accordance with this Agreement, the Company will transfer to the Merchant an amount equal to the "Net Settlement Amount" in accordance with the formula set out below:
5.3.1 Net Settlement Amount = Settlement Fund – Refund (if any) – Dispute Amount and Reimbursement (if any) – any other amount that the Company may deduct in accordance with its rights to withhold, deduct or set off under this Agreement; and
5.3.2 Where: Settlement Fund = Fund Available for Settlement – Service Fee.
5.4 Settlement File
Following the transfer of any Net Settlement Amount to the Merchant’s designated bank account, the Company will provide a file containing the relevant settlement information (the “Settlement File”) in relation to that Net Settlement Amount.
5.5 Incidental Fee for Fund Transfer
In connection with transferring the Net Settlement Amount to the Merchant, the Company will be responsible for bank charges (if any) imposed by banks which the Company initiates the transfer of such Net Settlement Amount. For any other fee or charges imposed by beneficiary banks (where the Merchant has a bank account),intermediary banks or other payment the Company passing or receiving such Net Settlement Amount on behalf of the Merchant, the Merchant shall be solely responsible for any such fee or charges.
6. Settlement and Settlement Limits
6.1 Currency Conversion
When the transaction amount or other account payable paid by the Merchant to the Company are different from the settlement currency under this Agreement, the transaction amount or other accounts payable shall be calculated in accordance with the date of occurrence of the transaction amount or other accounts payable and the prevailing market exchange rate of the designated bank of the Company..
6.2 Inquiry Regarding Settlement
Any inquiry by the Merchant with respect to settlement shall be made in writing and the Merchant shall provide any information reasonably required by the Company to assist with such enquiry. The Company will, acting in a commercially reasonable manner, assist the Merchant in resolving the relevant matter and provide a written response to the Merchant after receiving such written enquiry from the Merchant.
7. Risk Management Rules
7.1 The Merchant shall be responsible for any cost and loss incurred by any unauthorized payment, including but not limited to disputes in relation to the transaction and related cost.
7.2 The Merchant agrees that if the Company determines in its sole discretion that certain features of the Payment Services may be subject to high risk of unauthorized payment or fraudulent transaction, the Company may suspend or terminate, with reasonable notice, the provision of such part of the Payment Services, including but not limited to adjusting payment limit (whether per transaction or per day) of the Payment Services and/or.
7.3 The Merchant shall use its best efforts to promptly answer the Electronic Payment User’s enquiries and resolve any disputes in relation to the goods and/or services provided by the Merchant.
8. Fraud and Risk
If the Electronic Payment User claims reimbursement from the Merchant for unauthorized payment or other fraudulent transactions submitted and conducted via Electronic Payment Platform, the Merchant shall implement the following rules:
8.1 Transaction Evidence
The Merchant will provide the transaction evidence within 3 Working Days upon the Company’s request.
If the Company does not receive the transaction evidence, or deem the transaction evidence to be inadequate, the Merchant shall promptly pay the Company the same amount as the problematic transaction settled by the Company at that time in the designated bank account of the Merchant.
8.3 Reimbursement Obligation
After the Merchant provides the transaction evidence, the Company will try to assess the evidence to determine the effectiveness of the reimbursement. The Merchant must expressly agree to indemnify and hold the Company harmless for the amount to be agreed between the Merchant and the Company reimbursed to the Electronic Payment User.
9. Payment Policies of Electronic Payment Platforms
9.1 Responsibilities for Service Fee
The Merchant will pay Service Fee and Settlement Fee (if any) for using the Payment Services and will not, directly or indirectly, transfer any such Service Fee and Settlement Fee (if any) to its Electronic Payment User in the normal course of business.
9.2 Electronic Payment Wallet as payment method
The Merchant will not restrict its customers in anyway from using Electronic Payment Wallet as a payment method at checkout at any sales channel, including but not limited to requiring a minimum or maximum purchase amount from customers using Electronic Payment Wallet to make payments.
9.3 Prohibited Goods and Services (Refer to "Prohibited Goods and Services")
9.3.1 The Merchant fully acknowledges that the Company must not provide Payment Services with respect to any transaction which is prohibited by this Agreement(including payments in relation to Prohibited Products and Services),Applicable Laws or violates Electronic Payment Platform’s internal policies (as notified to the Merchant from time to time), or which will result in payment being considered to have breached any Applicable Laws.
9.3.2 The Merchant will provide electronic payment information about its products and services as reasonably requested by the Company from time to time. The Merchant will not sell products and services through Electronic Payment Platform that contain articles prohibited or restricted from being sold to Electronic Payment User under any Applicable Laws, including without limitation the products listed in "Prohibited Goods and Services", which may be updated by Electronic Payment Platform and notified to the Merchant from time to time (together, “Prohibited Products”). The Merchant will ensure that no transaction being submitted for electronic payment’s processing involves or relates to any Prohibited Products and Services (“Prohibited Transaction”). Electronic Payment Platform will have the right to refuse to provide any Payment Services with respect to any Prohibited Transaction and the Merchant will indemnify electronic payment for any damages, losses and liabilities that the Company may suffer arising from or in connection with such Prohibited Transactions.
9.4 Products and services
The Merchant will use Payment Services only for the products and services in connection with the Merchant’s principal business as indicated in the Agreement.
9.5 Storage of Transaction Information
The Merchant will maintain the records for each transaction to justify its authenticity for the period of seven (7) years after the completion of the transaction and the Company shall be entitled to review or otherwise access such records. Subject to any legal restrictions under Applicable Laws, the Merchant will procure that the Company be provided with or granted access to, the relevant transaction information including but not limited to information on the Merchant, The Merchant’s Platform, products and services, the amount, currency, time and counterparties to each transaction, within three (3) working days of the Company’s request. Subject to any restriction under Applicable Laws, the Company will advise the Merchant of the names of such the Company or regulatory and/or governmental authorities and the subject matter to which such requests relate.
9.6 Set off & Withholding
The Merchant agrees that the Company shall be entitled, at its sole discretion, to set off, withhold settlement. The circumstances under which the Company and Electronic Payment Platforms may exercise its rights under this Clause include, but are not limited to;
(A) if the Merchant fails to comply with any term of this Agreement;
(B) if the Company and Electronic Payment Platform believe that the Merchant has or is likely to become subject to bankruptcy, insolvency, reorganization, winding up or similar dissolution procedures;
(C) if the Company and Electronic Payment Platform reasonably believe that there has been a material deterioration in the financial condition of the Merchant;
(D) if the Company and Electronic Payment Platform reasonably believe that any transaction is a Prohibited Transaction;
(E) if the Merchant fails to pay the Service Fee of Payment Services to the Company as stipulated in this Agreement; and
(F) any loss to the Electronic Payment User or the Company as a result of any breach of any other stipulation in this Agreement.
10. Representations and Warranties
Each Party makes each of the following representations and warranties to the other Party, and acknowledges that such other Party is relying on these representations and warranties in entering into this Agreement.
The Party represents and warrants the following (collectively, the “Authorization Warranties”):
(i) it is an independent corporation duly organized, validly existing and in good standing under the laws of jurisdiction of its incorporation;
(iI) it is properly registered to do business in all jurisdictions in which it carries on business;
(iII) it has all licenses, regulatory approvals, permits and powers legally required to conduct its business in each jurisdiction in which it carries on business; and
(iv) it has the corporate power, authority and legal right to execute and perform this Agreement and to carry out the transactions and its obligations contemplated by this Agreement.
Each Party represents and warrants that once duly executed by the Party this Agreement shall constitute valid and binding obligations on the Party, enforceable in accordance with its terms. Except as otherwise stated in this Agreement, no approval or consent of any person or government department or agency is legally or contractually required to be obtained by the Party in order to enter into this Agreement and perform its obligations
10.3 No Conflicts
Each Party represents and warrants that (a)the execution of this Agreement, nor (b) the consummation by the Party of this Agreement will (i) conflict with the certificate of incorporation or by-laws or any other corporate or constitutional document of the Party or (iI) breach any obligations of the Party under any contract to which it is a party or (iII)violate any Applicable Laws.
Each Party represents and warrants that there is no litigation, proceeding or investigation of any nature pending or, to the Party’s knowledge, threatened against or affecting the Party or any of its Affiliates, which would reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement.
I. Prohibited List (HK Wallet)
II. Prohibited List (CN Wallet)
4. The Companies operates a payment and settlement service platform, which is dedicated to providing Card Acquiring Services to its merchants; and
5. The Merchant wishes to appoint the Companies, and the Companies now agree to provide Card Acquiring Services (as defined below) to the Merchant set forth in this Agreement.
Card Acquiring Services
1. DEFINITIONS AND INTERPRETATION
In this Agreement, the following terms shall have the following meanings (unless the context otherwise requires):
1.1 “Access Code” means each personal identification number and/or password that is necessary to enable the Merchant to access or use Merchant Data Account and/or any Service;
1.2 “Acquirer” means the Party who supplies Card Acquiring Services to the Merchant under this Agreement;
1.3 “Anticipated Liabilities” means amounts required to cover any sum due under: (i) the indemnity in clause 14.1 in respect of potential or expected Refunds, Chargebacks, Chargeback Costs, any liability or expected liability relating to a Transaction or Assessments; or (ii) any liability or potential liability of the Merchant’s under this Agreement;
1.4 “Applicable Law” means all laws or regulations (and including the requirements of any Regulatory Authority) applicable to a Party (including a Party’s rights or obligations) or to any Transaction or Refund for the time being in force in any relevant jurisdiction;
1.5 “Application Form” means QFPay Payment Express Onboarding Application Form attached in Appendix 1;
1.6 “Assessment” means any assessment, fine, liquidated damages, fee, cost, expense or charge of any nature which a Card Scheme, Other Financial Institution or any other Third party levies on the Merchant or the Companies at any time, directly or indirectly, in relation to a Service, Transaction or any other aspect of the Companies’ or such Third party’s relationship with the Merchant;
1.7 “Authorisation” means in the case of the Acquiring Services related to Cards: the confirmation at the time of a Transaction from the relevant Card Issuer that the Card used to payfor the Transaction has not been blocked for any reason or listed as lost orstolen or as having had its security compromised and that there are sufficientfunds available for the relevant Transaction;
1.8 “Authorisation Request” means a request for Authorisation;
1.9 “Authorised User” meansan individual authorised by the Merchant to access Merchant Data Account;
1.10 “Business Day” means aday other than a Saturday, Sunday or public holiday in Hong Kong on which banks are open for normal banking business in Hong Kong;
1.11 “Buyer” means a Person who or which has ordered goods and/or services from the Merchant and has initiateda Transaction in respect of that order, including a Cardholder;
1.12 “Capture” means, inrelation to Card Acquiring Services, the Companies’ transmission of a paymentinstruction in relation to a Transaction to a Card Scheme for onwardtransmission to a Card Issuer to enable the earmarking of funds by a CardIssuer in a Cardholder’s account for Settlement;
1.13 “Capture Request” means, in relation to Gateway Services, the submission by the Merchant to the Acquirervia the Gateway Service of Data relating to a specific Transaction afterreceipt of the Authorisation for the purposes of executing a paymentinstruction in respect of a Transaction;
1.14 “Card” means a credit, debit, charge, purchase or other payment card issued by a Card Issuer under aCard Scheme whose payments the Companies are able to process (as notified by theCompanies to the Merchant from time to time);
1.15 “Card Acquiring Services” means the Authorisation, Capture and Settlement by the Companies of a Card related Transaction, and the processing by the Companies of Chargebacks, Refunds, Representments and/or Retro-Charges in respect of Cards;
1.16 “Cardholder” means a Person who or which is the authorised user of a Card;
1.17 “Card Issuer” means a Person which issues Cards;
1.18 “Card Not Present Transaction” or “CNP” mean a Point-of-Sale Transaction in which theBuyer uses a Card but is not present at the point of sale;
1.19 “Card Schemes” meansschemes governing the issue and use of Cards listed in Schedule 6, or as may Be approved and notified by the Companies to the Merchant in writing from time to time;
1.20 “Chargeback” meanseither: (i) any circumstances where Card Issuers, Card Schemes and/or Other Financial Institutions either refuse to Settle a Transaction or demand payment from the Companies in respect of a Transaction that has been Settled and/or in respect of which Remittance been made to the Merchant; or (iI) any othercircumstance where any Other Financial Institution either refuses to make A payment to the Companies or demands payment from the Companies in respect of adisputed Payment or other payment made to the Companies in respect of a Transaction, or in respect of which Payment or other payment has been made to the Merchant; in each case notwithstanding any Authorisation;
1.21 “Chargeback Costs” means the administrative charge for processing a Chargeback and any (i) reasonablecosts, expenses, liabilities, and (iI) Assessments that the Companies may incuras a result of or in connection with a Chargeback;
1.22 “Claim” means any action, proceeding, claim, demand or assessment (including Assessments), fine or similar chargewhether arising in contract, tort (including negligence or breach of statutoryduty) or otherwise;
1.23 “Commencement Date” means the date on which the Merchant is notified by the Companies (in theCompanies’ sole and absolute discretion) that the Merchant’s application for provision of Services has been accepted;
1.24 “Confidential Information” means this Agreement and information relating to it (other than TransactionData), or provided pursuant to it, that is designated as"confidential" or which by its nature is clearly confidential, howsoever presented, whether in oral, physical or electronic form and which is disclosed by one Party to another hereunder, including (but not limited to) pricing and specifications relating to the Services;
1.25 “Contract Year” means each successive 12 month period commencing on the Commencement Date;
1.26 “Control” or “Controlled” means the exercise, or ability to exercise or entitlement to acquire, direct or indirect control over any Parties (as applicable), as defined in the Companies Ordinance of Hong Kong and a “Change of Control” shall be deemed to have occurred if any Person or Persons who control(s) any Parties at the Commencement Date subsequently cease to control any Parties, as the case may be;
1.27 “CPC/DCC Services” means the Cardholder Preferred Currency Direct and Dynamic Currency Conversion Services, as described in Schedule 4;
1.28 “Customer Due Diligence” means the measures prescribed by the Anti-Money Laundering (AML) regulations or any other Applicable Law;
1.29 “Customer Due Diligence” means the measures prescribed by the Anti-Money Laundering (AML) regulations or any other Applicable Law;
1.30 “Data” means documents, data and records of any kind relating to Transactions, Chargebacks, Representments, Retro-Charge or Refunds (including, for the avoidance of doubt, data relating to Cards and Buyers) and shall include Transaction Personal Data and Sensitive Authentication Data;
1.31 “Data Controller” means any Person who alone or jointly with others determines the purposes for which and the manner in which Personal Data are, or are to be, Processed;
1.32 “Data Protection Authority” means any authority which has jurisdiction over any Parties in the area of protection of Personal Data;
1.33 “Data Protection Legislation” means all Law applicable to the protection of Personal Data from time to time, including The Personal Data (Privacy) Ordinance, Laws of Hong Kong together with other Law and regulations made under them;
1.34 “Data Subject” means an identified or identifiable individual whose Personal Data is Processed under this Agreement;
1.35 “Disclaimer” means See Schedule 3
1.36 “Dispute Management System” means the online electronic request for information and Chargeback management and defense system provided or otherwise made available to the Merchant by the Companies;
1.37 “Documentation” means any documents the Companies supply to the Merchant from time to time, whether in physical or electronic form and whether in the form of text, graphics or still or moving images;
1.38 “eCommerce Transactions” or “E-commerce Transactions” mean Transactions which are sales in which the payment order is given via the internet, and excludes Mail Order/Telephone Order Transactions;
1.39 “EEA” means the European Economic Area;
1.40 “Exchange Rate” means the reference currency exchange rate the Companies may notify to the Merchant from time to time. The prevailing standard reference exchange rate is sourced from Bloomberg or an equivalent leading provider. The reference rate will fluctuate and is therefore indicative only;
1.41 “Fees” means the fees specified in the Application Form or Pricing Schedule;
1.42 “Floor Limit” means any monetary limit (of which the Companies notifies the Merchant from time to time) above which the Merchant must obtain the Companies’ Authorisation prior to completing a Transaction;
1.43 “Fraud Management Services” has the meaning given to that term in Schedule 4, part 3; “Gateway Services” means the provision by the Companies of an online portal that (among other things, and pursuant to the provisions of Schedule 4) supports the processing of Authorisation Requests and Capture Requests and the transmission of Data by the Companies between the Merchant and the Buyer and/or between the Merchant and an Acquirer to enable a Transaction, Representment or Retro-Charge or making a Refund over the internet. The Companies do not enter into the possession of any funds in the course of providing the Gateway Services (or at all where the Gateway Services are provided);
1.44 “Group Company” in respect of a Party means: (i) any undertaking which, directly or indirectly, Controls or is Controlled by such Party; and (iI) any other undertaking which, directly or indirectly, Controls or is Controlled by any such undertaking;
1.45 “Hosted Payment Pages” means the Companies hosted payment pages which may be utilised by the Merchant as part of the Gateway Service;
1.46 “Initial Term” means, unless otherwise stated in the Application Form, a period of twelve (12) months commencing on the Commencement Date;
1.47 “Intellectual Property Rights” means any and all intellectual property rights of whatever nature and includes patents, inventions, know-how, proprietary knowledge, trade secrets and other confidential information, copyrights, database rights (including rights of extraction), design rights (registered or unregistered), copyright, trademarks, service marks, logos, internet domain names, business names, trade names, rights protecting goodwill and reputation, moral rights, all registrations or applications to register any of the aforesaid items, and all rights and forms of protection of a similar nature of any of the aforesaid items or having equivalent effect in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing off;
1.48 “Losses” means any liabilities, losses, damages, charges, fines, costs and/or expenses (including reasonable and properly incurred legal fees and/or expenses);
1.49 “MCC” means Merchant Category Code;
1.50 “Mail Order/Telephone Order Transactions” or “MOTO” mean Transactions, which are Card Not Present Transactions, in which the Buyer pays using a Card concluded by telephone or mail order, other than eCommerce Transactions;
1.51 “Merchant Bank Account” means an account in the Merchant’s name with a duly authorised credit institution acceptable to the Companies that is maintained by the Merchant for the purposes of receiving Remittances and paying Fees due to the Companies in accordance with clause 4.1;
1.52 “Merchant Data Account” means an electronic management information account in the Companies’ systems containing Data related to Transactions, Chargebacks, Refunds, Representments and Retro- Charges, and which may be made available to the Merchant from time to time such as the Companies’ Dashboard or any replacement product made available to the Merchant from time to time;
1.53 “Merchant Material Adverse Change” means any circumstance, event or series of events that the Companies have reasonable grounds to believe materially adversely affects or may materially adversely affect the Merchant’s liabilities or potential liabilities; or the Merchant’s ability fully and promptly to perform and comply with any one or more of the Mercahnt’s obligations under this Agreement, including:
(A) a material change in the nature of the Merchant’s business or the goods and/or services supplied by the Merchant;
(B) a material positive or negative fluctuation month-on-month in the Merchant’s Transaction volumes or the average value of the Merchant’s Transactions or the occurrence of such other event as may give rise in the Companies’ discretion to a significant increase in the Companies’ risk profile;
(C) a material increase in the Merchant’s Chargeback, Refunds and/or declined Transactions levels relative to expected volume;
(D) the occurrence of a material Assessment or multiple Assessments;
(E) a Change of Control in respect of the Merchant, or a sale or other disposal of any substantial division or part of the Merchant’s business;
(F) the withdrawal, removal, termination or unenforceability of any security in relation to the Merchant which the Companies or any Other Financial Institution relies upon;
(G) the withdrawal or termination of any licence, permission or authorisation required to operate the Merchant’s business;
(H) instructions from a Regulatory Authority which the Merchant does not, or is unable or unwilling to, comply with;
(I) the Merchant grants to a Third party any security or charge over all or a significant proportion of the Merchant’s assets; or
(J) a material deterioration in the Merchant’s profits or financial or trading position,PROVIDED THAT, in respect of events set out in sub- paragraphs (B), (C) and (J) only, account shall be taken of historical figures and trends including seasonality of sales and yearly sales growth;
1.54 “Mobile Terminals” means a Terminal that enables Transactions to be submitted via a mobile telecommunications network;
1.55 “Network Rules” means all applicable rules, regulations and operating guidelines issued by the Card Schemes from time to time relating to Cards, Transactions, Alternative Payment Methods and any payments or processing of Data relating thereto (including those communicated to the Merchant in the Customer Operating Instructions and such rules, regulations and guidelines posted on Card Scheme websites from time to time and such other materials as the Companies may notify the Merchant about from time to time); and all amendments, changes and revisions made thereto from time to time, and any current waivers or exceptions agreed with the Card Schemes;
1.56 “Other Financial Institution” means any Third party credit or financial institution (including Card Issuers) which may be involved, or which the Companies in its sole and absolute discretion involves, in the course of the provision of any of the Services;
1.57 “Other Payments Organisation” means any Third party service provider (including providers of Third Party Products and Card Schemes) which may be involved, or which the Companies in their sole and absolute discretion involve, in the course of the provision of any of the Services;
1.58 “Party” means each party to this Agreement (as the context may require) and includes the successors and permitted assigns of each such party;
1.59 “Person” means any individual, companies, body corporate, corporation sole or aggregate, government, state or agency of a state, firm, partnership, association, organisation or trust (in each case, irrespective of the jurisdiction in or under the law of which it was incorporated, formed or otherwise exists);
1.60 “Personal Data” means data which relates to a Data Subject who can be identified from such data, or a combination of such data and other information in the possession of, or likely to come into the possession of, the Data Controller;
1.61 “Personnel” means employees, agents, consultants, contractors and sub-contractors and their employees, agents, consultants and sub-contractors;
1.62 “Point of Sale Transactions” means Transactions in which the Buyer’s payment instruction is issued via a Terminal;
1.63 “Pricing Schedule” means the document(s) setting out the relevant fees payable by the Merchant in connection with the Services, whether attached to or included within the Application Form, Schedule 7 and/or otherwise provided by the Companies to the Merchant from time to time;
1.64 “Privacy Statement” means collectively the Companies’ “layered” privacy statement as updated from time to time and which is made available at https://www.qfpay.global/privacy-policy;
1.65 “Processing” means any operation which is performed upon Personal Data, whether or not by automatic means, and “Process” shall be construed accordingly;
1.66 “Reason Code” means a code or category used by any Card Scheme to classify a specific activity, act or omission, including any code in the Visa Merchant Alert Service, Mastercard Member Alert to Control High-Risk Merchants or an equivalent for any other Card Scheme, or a Regulatory Authority black list;
1.67 “Recurring Transaction” means a repetitive periodic Transaction for which the Merchant charges the Buyer's Card or Alternative Payment Method account (e.g. subscriptions or instalments);
1.68 “Recurring Transaction Authority” means a Buyer's prior written authority (taken during the check-out process) for the Merchant to establish a Recurring Transaction, setting out: (a) the amount of the Recurring Transaction and whether this amount is fixed or variable; (b) the dates on which the Recurring Transaction will be charged to the Buyer’s Card or Alternative Payment Method account and whether the dates are fixed or variable; (c) the method of communication for all correspondence with the Buyer; and (d) a statement that the Buyer may cancel the Recurring Transaction Authority at any time;
1.69 “Refund” means a Transaction, in respect of an initiating Transaction, made wholly or partially to reverse that initiating Transaction;
1.70 “Regulated Terminal Hire Terms” means a hire agreement for Terminals;
1.71 “Regulatory Authority” means any governmental or regulatory authority, and/or any self-regulatory authority, governmental department, agency, commission, board, tribunal, crown corporation, or court or other law, rule or regulation making entity having jurisdiction over any of the Parties and/or their businesses or any part or subdivision thereof in any territory in which the Services are made available or any local authority, district or other subdivision thereof (including, in respect of Hong Kong, the Hong Kong Monetary Authority, the Financial Services and the Treasury Bureau, the Office of the Communications Authority) and any body which succeeds or replaces any of the foregoing;
1.72 “Remittance” means any payment the Companies make to the Merchant under this Agreement in the course of Card Acquiring Services (and “Remit” will be construed accordingly);
1.73 “Remittance Date” means the Business Day (notified to the Merchant by the Companies from time to time) on which Remittance occurs;
1.74 “Representative” means, in respect of the Parties, any Person that a Party may notify to the others from time to time as being authorised to act on that Party’s behalf;
1.75 “Representment” means a Transaction to reverse a Chargeback by the re-execution of the original Transaction, where the Merchant has successfully challenged the Chargeback;
1.76 “Restricted Person” means a person that is (i) listed on, or owned or controlled by a person listed on any Sanctions List; (iI) located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide Sanctions; or (iII) otherwise a target of Sanctions.
1.77 “Retro-Charge” means a Transaction initiated by the Merchant to reverse a Refund to which the Buyer was not entitled;
1.78 “Sanctions” means any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the Hong Kong government; (iI) the People's Republic of China government; or (iII) the respective governmental institutions and agencies of relevant jurisdictions, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (together “Sanctions Authorities”)
1.79 “Sanctions List” means the “Specially Designated Nationals and Blocked Persons” list issued or maintained or made public by any of the Sanctions Authorities.
1.80 “Schedules” means each of the schedules attached to, and forming part of, this Agreement;
1.81 “Sensitive Authentication Data” means security related information used to authenticate Cardholders and authorise Card transactions. Sensitive Authentication Data elements include magnetic stripe data (PAVE, CVV, CVC, CID) PINs, PIN blocks and the three or four digit number security code found either on the front or on the back of a card (e.g. MasterCard CVC2/ Visa CVV2);
1.82 “Services” means the Card Acquiring Services and/or the Terminal Hire that are provided to the Merchant by the Companies under this Agreement;
1.83 “Settlement” means the crediting to the Companies, its agent or an Other Financial Institution (as applicable) of the value of a Transaction as determined by the relevant Card Scheme or Other Financial Institution as the case may be (and “Settle” and “Settled” shall be construed accordingly);
1.84 “Tax” means all forms of tax and statutory, governmental, state, federal, provincial, local, government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and any penalty, fine, surcharge, interest, charges or costs relating to it.
1.85 “Tax Authority” means any taxing or other authority (in any jurisdiction) competent to impose, administer or collect any Tax.
1.86 “Terminal” means an authorised point-of-sale payment order acceptance terminal and associated equipment or device(s);
1.87 “Terminal Hire” means arrangements for the hire of terminals by the Companies to the Merchant under the Terminal Hire Agreements;
1.88 “Terminal Hire Agreements” means the Regulated Terminal Hire Terms and the Unregulated Terminal Hire Terms;
1.89 “Third party” means a Person who is not a Party to this Agreement;
1.90 “Third Party Product” means a product (whether hardware, software or services) supplied to the Merchant by a Third party;
1.91 “Trading Limit” means the maximum aggregate value of one or more Transactions that the Merchant may complete in respect of any specified period as notified to the Merchant from time to time;
1.92 “Transaction” means any payment by a Buyer for goods and/or services purchased by a Buyer from and provided by the Merchant, using either: (A) a Card, a Card number or otherwise to debit or credit the applicable Card account; or (B) an Alternative Payment Method; in each case in accordance with the terms of this Agreement and in relation to which the Companies supply any of the Services to the Merchant, or a reversal of the same. Unless the context requires otherwise, a reference to “Transaction” shall include a reference to a Refund, a Representment, a Retro-Charge, a Recurring Transaction and a series of connected Transactions;
1.93 “Transaction Data” means Transaction Personal Data and any other data relating to a specific Transaction;
1.94 “Transaction Personal Data” means Personal Data which it is necessary to provide or to Process in connection with Transactions, Chargebacks, Refunds, Representments or Retro-Charges in the course of providing the Services;
1.95 “Unregulated Terminal Hire Terms” are the terms applicable to unregulated hire arrangements for Terminals, specified in Schedule 5; and
1.96 “QFPay Customer Payments Account” means an account with any Other Financial Institution in which the Companies hold the proceeds of Transactions, net of any amounts due to the Companies.
1.97 Any reference to: (A) a clause shall be to the relevant clause of this Agreement; and (B) a part or paragraph shall be to the relevant part or paragraph of the relevant Schedule.
1.98 The use of the term “including” and inflections thereof, or of the abbreviation “e.g.” mean “including without limitation,” “include without limitation” or “includes without limitation”.
1.99 References to a Person include a reference to that Person’s successors or assigns.
1.100 Words importing the singular include the plural and vice versa where the context so requires.
1.101 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.102 Any references to a law or regulation is to the law or regulation from time to time in force.
1.103 Any reference to the Financial Conduct Authority includes any body taking over its functions.
1.104 To avoid doubt, as regards (i) the Merchant’s obligations and (iI) the Companies’ rights and remedies (and strictly for the Companies’ benefit only) any reference in the Agreement to a Transaction, Refund, Representment or Retro-Charge shall include activity purporting to constitute a Transaction, Refund, Representment or Retro-Charge and/or which would (save for any breach by the Merchant of this Agreement, or any unauthorised, fraudulent or criminal activity) have constituted a Transaction, Refund, Representment or Retro-Charge.
2. THE OBLIGATIONS OF THE COMPANIES
Provision of the Services
2.1 Acquiring Services: In return for the Fees related to Acquiring Services, the Companies shall supply the Merchant with the Acquiring Services in accordance with this Agreement, with reasonable care and skill, and in compliance with Applicable Law and the Network Rules.
2.2 Terminal Hire: In return for the Fees related to the Terminal Hire, the Companies shall supply the Merchant with, respectively, the Terminal Hire in accordance with this Agreement (including any specific terms and conditions contained in Schedule 4 or the terms and conditions set out in any Application Form and/or the Terminal Hire Agreements, as applicable), with reasonable care and skill, and in compliance with Applicable Laws.
Merchant Data Account and related terms
2.3 For the term of this Agreement, the Companies shall grant to the Merchant a non-exclusive, non-transferable to access and use:
(A)the Data that the Companies make available via Merchant Data Account; and
(B)the Documentation,solely for the purpose of receiving the Services in accordance with the provisions of this Agreement and solely for the Merchant’s internal business purposes. The Merchant agrees that the Merchant shall not publish or redistribute any content included in Merchant Data Account to any Third party. The Merchant undertakes not to delete or alter any proprietary or copyright or trademark notices appearing in the Merchant Data Account or related Documentation
2.4 While the Companies may display the Merchant’s Transactions in Merchant Data Account (which the Merchant may download, save, print or store as applicable, and should do so securely) and otherwise provide or make available certain information to the Merchant in accordance with Applicable Law, the Merchant is responsible for maintaining its own records related to the Services, Transactions, Refunds, Representments, Chargebacks and Retro-Charges, and for reconciling these with its own bank account data and other accounting records. Upon the termination of this Agreement for whatever reason, the Companies will have no obligation to retain, store or make available to the Merchant any Data, records or other information in connection with any of the Services or Transactions, Refunds, Representments, Chargebacks and Retro-Charges.
2.5 The Companies will show the amount of each Transaction in Merchant Data Account following or conditional upon the receipt of funds.
3. THE OBLIGATIONS OF THE MERCHANT
3.1 The Merchant shall at all times comply with:
(A)the provisions of this Agreement;
(B)the Network Rules, including any reflected in this Agreement, provided or made available to the Merchant from time to time, or made publicly available by a Card Scheme;
(C)all Applicable Law, including those requirements which apply to the sale of goods and/or services by the Merchant in connection with the Transactions and the execution and performance by the Merchant of the obligations under this Agreement; and
(D)the obligations relating to the sale and/or supply of goods and/or services by the Merchant to Buyers.
The use of the Services
3.2 The Merchant shall only accept payments from and/or make Refunds to Buyers in connection with goods and/or services which the Merchant has sold and supplied as principal to those Buyers, and only pay such Refunds to the Buyer using the payment method used by the Buyer for the original Transaction;
3.3 The Merchant shall only accept payments and/or make Refunds in respect of goods and/or services the sale and supply of which commonly falls within the business as identified to the Companies. The Merchant acknowledges the Companies may, acting reasonably, amend the MCC (the Network Rules’ categorisation of merchant businesses) solely to ensure a more accurate match to the business;
3.4 The Merchant shall notify the Companies in writing before the Merchant makes any change to the nature of the goods and/or services the sale and supply of which fall within the business as identified to the Companies;
3.5 The Merchant shall promptly notify the Companies in writing if the Merchant changes address or place of business and obtain the Companies’ prior written consent (which may be withheld at its sole discretion) in respect of any URL of any website where the Merchant accepts or states that the Merchant will accept payments by Card or Alternative Payment Methods using any of the Services;
3.6 (where the Companies have agreed in writing that the Merchant may accept Recurring Transactions) in relation to any Recurring Transaction, the Merchant shall:
i. obtain a Recurring Transaction Authority from the Buyer for such Recurring Transaction and confirm, within two (2) working days of the date of the Recurring Transaction Authority, to the Buyer via the agreed method of communication that a Recurring Transaction Authority has been established;
iI. notify the Buyer via the agreed method of communication at least seven (7) working days prior to a Recurring Transaction payment being charged to the Buyer’s Card if: (i) the payment amount has changed; (iI) the payment date has changed; (iII)more than six (6) months have elapsed since the last Recurring Transaction payment; or (iv) a trial period, introductory offer or promotional activity has expired;
iII. not effect (or seek to effect) a Transaction under the Recurring Transaction Authority once the Recurring Transaction Authority has expired, or once the Buyer has notified the Merchant that the Buyer wishes to cancel such Recurring Transaction Authority; and
iv. retain securely the Recurring Transaction Authority or at least a period of eighteen (18) months after the date of final Transaction effected under it, and produce each Recurring Transaction Authority to the Companies on demand.
To avoid doubt, the Merchant may not accept Recurring Transactions unless the Companies have previously agreed with the Merchant in writing that the Merchant may do so.
The Merchant shall only accept payments and submit Data to the Companies in respect of Transactions which a Buyer has authorised in accordance with Applicable Law, this Agreement (including the Customer Operating Instructions), the Network Rules and any other information or instructions provided or made available by the Companies to the Merchant from time to time;
3.7 The Merchant shall ensure that the Merchant prominently and unequivocally inform Buyers of (i) the identity of the Merchant at all points of interaction with a Buyer (including prominently displaying the companies’ name and any trading name on any website through which the Merchant conduct Transactions), so that the Buyer can readily identify the Merchant as the counterparty to the relevant Transaction; and (iI) (in respect of eCommerce Transactions) location (physical address), which must be clearly identified on the home and payment page of any relevant website to enable the Card holder to easily determine whether the Transaction will be a domestic transaction or a cross-border Transaction;
3.8 The Merchant shall only submit Data to the Companies directly from its own staff or systems, or via a Third Party Product which has been expressly approved by the Companies in writing as one the Companies is entitled to use to submit Data to the Companies, and in respect of which the Merchant shall ensure that appropriate compliance standards, licences and clearances are obtained (and the correct licence fees or royalties paid) for the use of all such Third Party Products used in connection with the Services;
3.9 The Merchant shall offer Buyers a documented complaints procedure and customer service contact point accessible by e-mail and/or telephone;
3.10 The Merchant shall refrain from doing anything which the Companies reasonably believes to be disreputable or capable of damaging the reputation or goodwill of the Companies, or any Other Financial Institution, Other Payments Organisation or the Card Schemes;
3.11 The Merchant shall, not itself or through a Third party, reverse engineer or copy any technology of a proprietary nature which the Companies make available to the Merchant; and
3.12 The Merchant shall submit Transactions to the Companies promptly and in any event within two (2) days of entry into them.
3.13 The Merchant shall ensure that the Access Codes are not made known to any other person. The Merchant shall use all reasonable endeavours to ensure that there is no unauthorised use of the Access Codes, Terminals or of any other confidential material or information used in the provision or use of Merchant Data Account. However, if the Merchant suspects that there may be or has been or are aware that there has been unauthorised use of the Access Codes or of any other confidential material or information used in the provision or use of Merchant Data Account the Merchant shall notify the Companies immediately via telephone, with confirmation of such notification in writing, using the relevant contact information (see introduction above). The Companies will use reasonable endeavours to prevent unauthorised use of Merchant Data Account upon receiving such notification.
Access Codes, Merchant Data Account, Documentation and related security measures
3.14 The Merchant acknowledges and agrees that the Merchant is solely responsible for establishing and applying adequate security systems and procedures:
(A) to comply with the provisions of clause 3.3;
(B) for monitoring all use of or access to Access Codes, Terminals and Merchant Data Account in order to ensure that any Authorised User is using or accessing Merchant Data Account within the limits of their authority and that no transactions have been effected which would indicate that unauthorised persons are in possession of Access Codes; and
(C) in relation to Data after it has been accessed via, or printed or downloaded from, Merchant Data Account.
3.16 The Merchant is responsible for all losses resulting from any unauthorised activity in connection with Merchant Data Account (including use of Access Codes and Terminals). The Merchant acknowledges and agrees that without limitation the Companies may suspend the Services and/or at the Merchant’s cost take such other steps as the Companies considers necessary if the Merchant has acted fraudulently or the Merchant has either intentionally or not, and whether or not through negligence, failed to comply with the provisions of this Agreement (including failing to protect Access Codes under clauses 3.3 or 3.4, or failing to notify the Companies of the unauthorised transaction under clause 4.7).
3.17 If any action or proceeding is brought:
(i) against the Companies by a Third party; or
(iI) by the Companies against a Third party,in relation to any Transaction or dealing with or for the Merchant, the Merchant shall co-operate with the Companies to the fullest extent possible in the prosecution or defense of such action or proceeding.
3.18 The Merchant shall only access and use:
(A) the Data that the Companies makes available via Merchant Data Account; and
(B) the Documentation,solely in accordance with the licence granted to the Merchant by the Companies under clause 2.6.
3.19 The Merchant shall notify the Companies as soon as the Merchant terminates the authority of an Authorised User.
3.20 Except as expressly permitted under this Agreement, the Merchant must not copy, download, disclose or make available to any Third party any Data from Merchant Data Account or the Documentation in whole or in part for any purpose whatsoever.
3.21 Customer Due Diligence: The Merchant will comply promptly with all requests for information that the Companies make for the purpose of meeting the Companies’ operational and legal requirements to carry out Customer Due Diligence in relation to the Merchant (including providing personal information about the Merchant’s directors and beneficial owners).
3.22 Costs: Unless otherwise agreed by the Companies in writing, the Merchant acknowledges and agrees that the Merchant shall (at the Merchant’s own cost) be solely responsible throughout the duration of this Agreement for the provision of all equipment, software, systems and telecommunications facilities which are required to enable the Merchant to receive the Services (including any adjustments pursuant to clause 22.1). This includes any integration related costs, incurred prior to, on or after the Commencement Date.
(A) The Merchant shall comply with all Applicable Law to which the Merchant may be subject and shall comply in all respect with all Sanctions.
(B) The Merchant undertakes that the Merchant is not, and will procure that none of directors, officers, agents, employees or persons acting on behalf of the foregoing is, a Restricted Person and do not act directly or indirectly on behalf of a Restricted Person.
(C) The Merchant shall to the extent permitted by law promptly upon becoming aware of them supply to the Companies details of any claim, action, suit, proceedings or investigation against the Merchant or the persons listed in (B) above with respect to Sanctions by any Sanctions Authority.
3.24 Merchant location rules: The Merchant warrants and undertakes that the Merchant:
(A) has a permanent establishment and/or business registration in the country referenced as the address in the Agreement which is where the Acquiring Services are provided;
(B) will abide by all relevant accounting principles as they apply to the Merchant and record the Transactions that QFPay processes for the Merchant in the accounting records of the permanent establishment/business registration as the case may be fully and properly in accordance with those principles and the Network Rules;
(C) pays all relevant Taxes as required by Applicable Law and the Network Rules relating to the Transactions submitted to QFPay for processing by the permanent establishment/business registration as the case may be; and
(D) will comply with all Network Rules as in force from time to time and to the extent any Card Network rules require a change in the location of the Merchant or contracting entities, the Merchant undertakes to comply with such requirements and will execute all such documents as required by the Companies in order to ensure compliance with the Network Rules or any Applicable Law. Such document(s) may include but are not limited to, the execution by the Merchant of a novation agreement replacing the Merchant legal entity with another entity or Group Company as required pursuant to the relevant Network Rules.
3.25 The Merchant further agrees to provide the Companies with evidence of compliance with this warranty and undertaking on request by the Companies, including the accounting records relating to the permanent establishment/business registration as the case may be.
4. FEES, CHARGES, REFUNDS AND OTHER PAYMENTS DUE FROM THE MERCHANT
4.1 All applicable Fees payable to the Companies under this Agreement are immediately due and payable on provision of the relevant Service to the Merchant and all appliable Fees will be calculated and rounded up to the nearest 10 (Ten) Hong Kong cents.
4.2 Unless stated otherwise, all Fees, charges and other payments to be made by the Merchant under this Agreement are exclusive of Goods & Services' Tax and any other applicable Taxes under any Applicable Law or governmental decree, for which the Merchant shall also be liable. Any Tax payable in respect of the Services provided or payments made under this Agreement (other than Tax payable on the Companies’ net income, profits or gains) will be payable by the Merchant.
4.2.1 Joint liability for Tax: If both Parties are jointly liable for any Tax, such Tax will be payable by the Merchant. The Companies may however (but shall not be obliged to) pay any such Tax to the relevant Tax Authority and, if the Companies pay it, the Merchant will immediately reimburse the Companies for it. The Companies may, at their sole discretion, deduct such sums from any Remittance, Outward Payment or sums held by the Companies and owed to the Merchant.
4.2.2 Tax Deduction: If a deduction or withholding on account of Tax (a “Tax Deduction”) is required by Applicable Law, the Companies may make such Tax Deduction from any Remittance or Outward Payment and will pay such amounts as are due to the relevant Tax Authority. For the avoidance of doubt, the Companies will not be obliged to increase or gross-up any payment on account of any Tax Deduction. At the Merchant’s request, the Companies will provide confirmation that the Tax Deduction has been made and/or that the appropriate payment has been made to the relevant Tax Authority.
4.2.3 Information required by a Tax Authority: If a Tax Authority requires information from the Companies in relation to the Merchant and/or Transactions processed under this Agreement, the Merchant hereby agrees that the Companies may provide such information. The Merchant agrees to provide the Companies with Tax identification details on request.
4.3 Where the Companies does not Remit to the Merchant net of amounts owed by the Merchant to the Companies (as referred to in clause 5.2), while all sums are due immediately, they will be payable in accordance with the terms of any invoice issued by the Companies, or such period as applies to any direct debit.
4.4 The Companies may from time to time vary the Fees and/or introduce new charges in addition to the Fees, in accordance with clause 22.
4.5 The Merchant shall maintain and disclose to Buyers at the time of purchase a fair policy for the return of goods or cancellation of services. The Merchant shall not give a cash refund to a Buyer for a payment made using a Card, unless required by Applicable Law, nor accept cash or other compensation for making a refund to a Card.
4.6 The form and procedure for making Refunds is specified in the Customer Operating Instructions applicable to the type of Refund. A Refund only arises in circumstances where there is an originating Transaction which is being reversed or partially reversed. The Merchant must ensure the amount of any Refund does not exceed the amount of the initiating Transaction. The Merchant is solely liable for any misuse of facility or any Service to process Refunds, including where there is no originating Transaction.
4.7 Subject to the provisions of this Agreement, where the Companies are providing Acquiring Services the value of any Refund will be credited to the Buyer’s payment service provider’s account by no later than the end of the Business Day after the Merchant submits the Refund, unless the Merchant submits the Refund after 15:00 (HKT), in which case, the Refund will be deemed to have been submitted on the next Business Day. The time periods in this clause 4.7 shall not apply where the Buyer’s payment service provider is located outside the EEA.
4.8 The Companies may refuse to execute a Refund if it does not meet the conditions in this Agreement or is prohibited by Applicable law. If the Companies do refuse to execute a Refund, within the time for processing the Refund the Companies will notify the Merchant (i) (unless prohibited by law) of the refusal, (iI) (if possible) the reasons for such refusal, and (iII) (where it is possible to provide reasons for the refusal and those reasons relate to factual matters) the procedure for correcting any factual mistakes that led to it. Any payment order that the Companies refuse will be deemed not to have been received for the purposes of execution times and liability for non-execution or defective execution.
4.9 Where the Companies execute a Transaction or Refund in accordance with details provided by the Merchant, the Transaction or Refund will be deemed to have been correctly executed by the Companies and any Other Financial Institution involved. Where the details provided by the Merchant are incorrect, the Companies are not liable for the non-execution or defective execution of the Transaction or Refund, but the Companies will make reasonable efforts to recover the funds involved in such a Transaction or Refund and the Companies may charge the Merchant for any such efforts.
4.10 Subject to the provisions of clause 4.9 and where the Companies are liable for:
(A) the correct execution of Refunds unless the Companies can prove to the Buyer and, where relevant, the Buyer’s payment service provider that the Buyer’s payment service provider received the amount of the Refund in accordance with clause 4.8. Where applicable, on the Merchant’s request, the Companies will make immediate efforts to trace a non-executed or defective Refund and notify the Merchant of the outcome and without undue delay refund to the Merchant the amount of the non-executed or defective Refund and, where applicable, restore Merchant Data Account to the state it would have been in had the non-execution or defective execution not taken place; and
(B) any: (1) charges for which the Merchant are responsible; and (2) interest the Merchant must pay,
in each case, as a consequence of the non-execution or defective execution.
4.11 Subject to the provisions of clause 4.9, where the Merchant and a Transaction is initiated by the Merchant as a payee (e.g. direct debit) as opposed to through the Merchant (e.g. a Point of Sale Transaction), the Companies are liable for the correct transmission of the payment order in accordance with Applicable Law. If the Companies become aware of the non-execution or defective execution of a Transaction in circumstances where the Companies are liable, the Companies will immediately re-transmit the payment order in question and make immediate efforts to trace the Transaction and notify the Merchant of the outcome. Where the Companies can prove to the Merchant and, where relevant, to the Buyer’s payment service provider that the Companies are not liable in respect of a non-executed or defectively executed Transaction, the Buyer’s payment service provider is liable to refund to the Merchant the amount of the non-executed or defective Transaction and, where applicable, restore Merchant Data Account to the state it would have been in had the non-execution or defective execution not taken place.
4.12 The Merchant must notify the Companies promptly after becoming aware (and in any event within 13 months of the Transaction) of any Refund which has notbeen correctly executed. The Merchant shall also notify the Companies promptlyof any unauthorised Transactions.
4.13 If the Merchant fails to pay any amount under this Agreement when due, then in addition to any of our other remedies under this Agreement, the Companies may charge the Merchant any reasonable costs and expenses incurred by the Companies in endeavoring to collect any unpaid and overdue amounts, including any debt collection agency charges and reasonable legal costs which are incurred by the Companies in exercising our rights under this Agreement, including enforcement of it.
5. PAYMENTS TO THE MERCHANT
5.1 After the Companies show and value date Transactions to Merchant DataAccount in accordance with clauses 5.2 to 5.7 (inclusive), the Companies shallinitiate or procure the initiation of each Remittance by bank transfer toMerchant Bank Account on the later of the following:
(A) the Remittance Date; and
(B) the expiry of any period of deferment pursuant to clause 5.4 in respect of the relevant Transactions.
5.2 In respect of any sums specified in clause 5.3 below, the Companies mayat our option (which the Companies may exercise in our sole and absolute discretion):(A) deduct or withhold such sums from, or set-off such sums against, any amount the Companies are otherwise obliged to pay the Merchant; and/or(B) provide or make available to the Merchant (including by email or on a portal from which it can be accessed and/or downloaded) an invoice for any or all such sums, which invoice shall be payable in accordance with its terms;
5.3 The sums referred to in clause 5.2 are:
(A) any Refunds;
(B) any Chargebacks;
(C) any Assessments;
(D) any Chargeback Costs;
(E) any Claims;
(F) any Anticipated Liabilities;
(G) any Fees; and
(H) any other charges or amounts due from the Merchant to the Companies under this Agreement or otherwise.
5.4 In addition to the Companies’ rights under clauses 5.2 and 5.3, the Companies may defer any amount the Companies are obliged to pay the Merchant:(A) if, following any deductions pursuant to clause 5.2, such amount is less than the minimum Remittance threshold that the Companies reasonably determine in their sole and absolute discretion (of which the Companies will notify the Merchant from time to time), until the total Remittance payable reaches that threshold;
(B) where the Companies reasonably believe that a Transaction (including activity which would otherwise have constituted a Transaction) may be fraudulent or involves other criminal activity, until the satisfactory completion of our investigation and/or that of any Other Financial Institution, Regulatory Authority, Card Scheme or any other Third party; or
(C) without limit in amount or time, if the Companies become aware or reasonably believes that the Merchant is in breach of or likely to be in breach of the obligations under this Agreement.
5.5 The Companies may suspend the processing of all or any Transactions, Refunds, Representments or Retro-Charges where the Companies reasonably believes that a Transaction, Refund, Representment or Retro-Charge (including activity which would otherwise have constituted a Transaction, Refund, Representment or Retro-Charge) may be fraudulent or involves any criminal activity, until the satisfactory completion of investigation and/or that of any, Other Financial Institution, Regulatory Authority, Card Scheme, or any other Third party.
5.6 In the event that the Companies exercise the rights under this clause 5 the Companies shall notify the Merchant of any such action and the reasons for it, unless the Companies are prohibited from doing so under the Applicable Law. Subject to reasonable security measures and Applicable Law, the Companies will notify the Merchant before any suspension of processing under clause 5.5 if the Companies is able to do so, or otherwise immediately after such suspension.
5.7 Remittance shall be paid in the currency or currencies agreed between the Merchant and the Companies as set out in the Application Form, or as otherwise agreed in writing by both Parties from time to time. Where the Companies applies a currency conversion to Remittance, the Companies use prevailing Exchange Rate of the day which is applied on: (a) the date of Settlement, in the case of Point-of-Sale Transactions (including Mail Order/Telephone Order Transactions and Card Not Present Transactions); and (b) the date on which the Transaction is sent to the Acquirer, in the case of eCommerce Transactions.
5.8 In circumstances where the Companies receive Transaction funds, the Merchant hereby unconditionally instructs and authorises the Companies or any Other Financial Institution to remit such funds to one or more QFPay Customer Payments Accounts for the purpose of holding the funds received in respect of Transactions the Merchant has processed (net of any amounts due to the Companies) on behalf of the Merchant, prior to making each Remittance to the Merchant. The Merchant shall not be entitled to receive interest, if any, paid by the Companies’ bank service provider in connection with funds held in the QFPay Customer Payments Account and any such interest may be retained by the Companies.
6. CHARGEBACKS AND ASSESSMENTS
6.1 Each Chargeback and each Assessment represents a debt immediately due and payable by the Merchant to the Companies.
6.2 The Merchant acknowledges and agrees that the Merchant may be required to reimburse the Companies for Chargebacks in circumstances where the Merchant has accepted payment in respect of the relevant Transaction, even if the Merchant is under no legal liability in respect of the supply of the goods or services concerned. To the extent permitted by Applicable Law, the Companies shall notify the Merchant as soon as reasonably practicable of any applicable Chargebacks and Chargeback Costs which have occurred or been incurred. Such notification may be given via a link to a URL which the Companies may provide to the Merchant.
6.3 Any Chargebacks for which the Merchant is required to reimburse the Companies shall correspond to the whole or part of the Settlement value in the currency of the original Transaction. With the Merchant’s written consent (not to be unreasonably withheld or delayed) the amount may be converted to the Settlement currency from the currency of Chargeback at the Exchange Rate quoted to the Companies.
6.4 In the event that the Merchant wishes to dispute a Chargeback, it is the Merchant’s responsibility (i) to prove to the Companies’ reasonable satisfaction (which shall, subject to clause 6.5 and without limitation, be conditional upon the relevant Card Scheme, Card Issuer, Other Financial Institution, as the case may be, confirming it is satisfied) that the debit of the Buyer's account was authorised by such Buyer; and (iI) (additionally) to provide the Companies with such other evidence as the Companies or any Card Issuer, Other Financial Institution or Card Scheme may require the Merchant to provide in support of the Merchant’s claim. The evidence required to be provided will depend on, among other things, the nature of the Chargeback, and may vary accordingly.
6.5 Subject to the Network Rules, neither the Companies nor any Other Financial Institution shall be obliged to investigate the validity of any Chargeback or Assessment. The Merchant acknowledges and agrees that any decision or determination of the relevant Card Scheme as to the validity and extent of any Chargeback and/or Assessment shall be final and binding.
6.6 As Chargebacks may arise a considerable period of time after the date of the relevant Transaction, the Merchant acknowledges and agrees that, notwithstanding any termination of this Agreement for whatever reason, the Companies shall remain, without prejudice to Clause 8, entitled to recover Chargebacks and Chargeback Costs from the Merchant (and, where relevant, from any Person who has provided the Companies with a guarantee or security relating to the Merchant’s obligations under this Agreement) in respect of all Chargebacks that occur in relation to Transactions effected during the term of this Agreement.
6.7 If the Merchant wishes to dispute a Chargeback or Assessment, the Merchant will do so in accordance with the applicable procedure set out in the Customer Operating Instructions and Network Rules and, if applicable, the Dispute Management System. In the case of a disputed Chargeback or Assessment, the Merchant must provide the Companies within any specified timeframe with the evidence required by the Companies, the Card Scheme or the Card Issuer. The use of the Dispute Management System by the Merchant is subject to and conditional upon the Merchant granting the necessary access to the information required. The Merchant consents to the use of any such information within the Dispute Management System and shall ensure that the information (i) is complete and accurate in all material respects; and (iI) does not infringe any Intellectual Property Rights or confidentiality rights of a Third party.
7. FLOOR AND TRADING LIMITS
7.1 In respect of the Acquiring Services, the Companies may from time to time notify the Merchant of a Trading Limit and/or a Floor Limit.
7.2 The Merchant shall not exceed the Trading Limit or complete a Transaction in excess of the Floor Limit without the Companies’ prior written approval (to be given in its sole and absolute discretion). For the purposes of this clause 7.2 the Companies may give such written approval via an electronic authorisation that the Merchant may not be able to store. Such Trading Limit or Floor Limit shall continue to apply unless the Companies notify the Merchant otherwise in writing.
7.3 Unless otherwise agreed by the Companies or notified by the Companies in accordance with clause 7.1 or 7.2, the monetary value of the Floor Limit shall be zero.
8. BANK ACCOUNT AND PAYMENTS
8.1 The Merchant shall open and maintain in its name a Merchant Bank Account throughout the term of this Agreement and for such period as may be required thereafter for the purposes of any applicable provisions of this Agreement.
8.2 In addition to, and without prejudice to the exercise of any rights under clauses 5.2 to 5.4, the Companies may debit the Merchant Bank Account, at the Companies’ option, for all sums that become due and payable by the Merchant to the Companies under or in connection with this Agreement, in accordance with the terms of the direct debit instruction maintained by the Merchant under clause 8.1. Where applicable, the Companies hereby authorise any Group Company of the Companies to collect Fees and other amounts owing to other Group Company of the Companies in relation to the Services provided by the latter, which may be collected directly from the Merchant Bank Account, whether under the direct debit mandate or otherwise, or as otherwise provided in the Agreement. Payment by the Merchant of the Fees for the Services provided by one another Group Company of the Companies will satisfy any corresponding amount due to the former.
8.3 The Merchant will ensure that the Merchant Bank Account shall at all times have a credit balance sufficient to meet any sums due and payable to the Companies under or in connection with this Agreement.
8.4 The Companies shall, if practicable, notify the Merchant in advance of any sums payable by the Merchant to the Companies which the Companies intend to debit by direct debit.
8.5 The Merchant shall notify the Companies in writing in advance of any changes proposed by the Merchant or any Third party in respect of the Merchant Bank Account (including the location of the branch at which such account is held) and shall not implement such changes without the Companies’ prior written consent (such consent not to be unreasonably withheld or delayed). If any changes in the Merchant Bank Account details are imposed on the Merchant, the Merchant shall notify the Companies in writing immediately, giving full details of such changes and the reasons for them.
8.6 This clause 8 shall not prejudice the Merchant’s rights under Applicable Law or any Direct Debit Guarantee Scheme to recover payments made to the Companies by direct debit.
8.7 Any Remittance made, at the Merchant’s direction, by the Companies to a Merchant Bank Account in the name of a person other than the Merchant will constitute good receipt by the Merchant of the sum due and owing by the Companies to the Merchant in relation to the Companies’ liability to the Merchant under this Agreement.
9.1 Subject to the provisions of clauses, 5.8, 11 and 15.3, if any Party (the defaulting party) fails to pay any amount under this Agreement when due, then the other Party shall be entitled to charge the defaulting party interest as penalty at a rate equal to three 3% per annum above the prime rate that is published by HSBC (Hong Kong) from time to time.
9.2 The Parties agree the provisions of this clause 9 provide a substantial contractual remedy and hence Money Lenders Ordinance of the laws of Hong Kong is excluded herein.
10.1 The Merchant hereby irrevocably authorises each Group Company of the Companies and any Other Financial Institution, from time to time without notice and both before and after demand, to set off by whatever means the whole or any part of the Merchant’s liabilities to the Companies or any Other Financial Institution (as appropriate) under this Agreement or any other contract (whether such liabilities are present, future, actual or contingent or potential, liquidated or unliquidated and irrespective of the currency of their denomination) against any Remittance due to the Merchant or against any sums (whether or not related to the Transaction that gave rise to the liability) held by the Companies or any Other Financial Institution or owed to the Merchant under this Agreement or any accounts referred to in clause 11. Any credit balance with the Companies and/or any Other Financial Institution will not be repayable, or capable of being disposed of, charged or dealt with by the Merchant until such liabilities of the Merchant to the Companies and any Other Financial Institution have been met. Neither the Companies nor any Other Financial Institution allowing the Merchant to make withdrawals from any account the Merchant holds with the Companies or any Other Financial Institution will waive this restriction or the Companies’ or such Other Financial Institutions rights under this clause 10. The Companies will notify the Merchant as soon as reasonably practicable upon exercising our rights, and/or upon the Companies or any Other Financial Institution exercising the Companies’ or their rights, under this clause 10.1.
10.2 The Merchant is not entitled to any form of set-off in respect of any of the Companies or any Other Financial Institution’s liabilities under this Agreement or any other Agreement (whether such liabilities are present, future, actual, contingent or potential) against any amounts due to the Companies or any Other Financial Institution from the Merchant.
10.3 Any exercise of the Companies or any Other Financial Institution’s rights under this clause 10 shall be without prejudice and in addition to any other rights or remedies available to the Companies or any Other Financial Institution under this Agreement or otherwise.
11.1 The Companies may at any time require that the Merchant procures, within thirty (30) days (or such longer period as the Companies may determine is reasonable) after receiving the Companies’ written request, that a Person or Persons reasonably satisfactory to the Companies provide the Companies with a guarantee, indemnity or other security (including the replacement of any existing security) in such form and over such assets as the Companies may reasonably require (including Merchant Bank Account) to secure to the Companies’ reasonable satisfaction the performance of the Merchant’s obligations (including contingent or potential obligations) from time to time under this Agreement. No interest is payable in respect of any security arrangements entered into in connection with this Agreement. Any security granted to the Companies in accordance with this clause shall be held on trust to secure the Merchant’s obligations under this Agreement to each Group Company of the Companies.
11.2 In connection with this clause 11, the Companies may from time to time request the Merchant’s reasonable assistance (at the Merchant’s cost) with the Companies’ credit assessment. This assistance may involve the provision by the Merchant of its financial and trading information.
11.3 The Companies may charge the Merchant for the Companies’ reasonable external costs (including legal fees) incurred in obtaining the guarantee, indemnity and/or security referred to in this clause 11, and shall not be liable for any of the Merchant’s costs.
12. TERM AND TERMINATION
The term of Agreement
12.1 This Agreement shall come into force on the Commencement Date and, unless otherwise terminated earlier in accordance with any provision of this Agreement, continue thereafter until:
(A) it is terminated in accordance with clause 12.2, such notice not toexpire prior to the end of the Initial Term; or
(B) it is terminated in accordance with clause 12.2.
12.2 For the purposes of termination by notice under clause 12.1:
(A) the Companies shall give the Merchant three (3) months’ prior written notice; and
(B) the Merchant shall give the Companies three (3) month’s prior written notice.
12.3 In the event of the Parties’ failure to request in writing for termination of this Agreement three (3) months prior to the first and subsequent expiration of this Agreement, this Agreement shall be deemed to be extended for three (3) years automatically subject to no limitation.
12.4 The clauses with respect to the refund and confidentiality shall survive in the event of automatic renewal of this Agreement, and the Parties shall continue to perform accordingly.
12.5 Companies’ other termination and related rights: The Companies may terminate this Agreement or any Service, or suspend the provision of any Service with immediate effect, to be notified to the Merchant in writing, if the Merchant:
(A) commits a material breach of this Agreement which: (1) is not, in the Companies’ reasonable opinion, capable of remedy; or (2) if capable of remedy, is not remedied to the Companies’ reasonable satisfaction within twenty-one (21) days of service of the notice requiring such remedy;
(B) is Insolvent;
(C) is the subject of a petition, order, or resolution or any step in connection with winding up (whether solvent or insolvent);
(D) ceases or threatens to cease to carry on all or a material part of the Merchant’s business, except for the purpose of a bona-fide solvent reconstruction, amalgamation, re-organisation, merger or consolidation;
(E) begins negotiations or proceedings, or propose or agree to defer, reschedule or readjust the Merchant’s debts;
(F) proposes or makes a general assignment of any of the Merchant’s debts or an arrangement or composition with or for the benefit of some or all of the Merchant’s creditors in respect of all or all of a particular type of the debts;
(G) agrees to a moratorium, or a moratorium is agreed or declared in respect of all or a material part of (or a particular type of) the Merchant’s debts or the Merchant otherwise proposes, seeks or agrees to defer, reschedule or readjust any of the debts;
(H) is the subject of a petition for an winding order or an application for an winding-up order, or an administrator is appointed to the Merchant or notice of intention to appoint an administrator to the Merchant is filed or given, or any other step is taken by any person with a view to the administration of the Merchant under the relevant Bankrupcty and Winding-up laws including the passing of any resolution by the Merchant’s directors or shareholders approving the presentation of any such petition, the making of any such application or appointment or the giving of any such notice;
(I) is the subject of any step for an execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the Merchant that is returned unsatisfied in whole or in part, or any step to enforce security over, or a distress, execution or other similar process is levied or served against, the whole or a substantial part of the Merchant’s assets or undertaking, including the appointment of a receiver, administrative receiver, manager or similar officer to enforce that security;
(J) suffers or is subject to any equivalent event, circumstance or procedure to those set out above in this clause 12.4(B) to (I) (inclusive) in any other jurisdiction;
(K) undergoes a Merchant Material Adverse Change;
(L) breaches any applicable Trading Limit or Floor Limit;
(M) fails to comply with clauses 17;
(N) acts in a manner, or if anything happens to the Merchant or comes to the Companies’ attention in relation to the Merchant or arising from or incidental to the Merchant’s business or the conduct of the Merchant’s business (including trading practices or any individual’s activity), that the Companies in our reasonable discretion consider:
(1) to be disreputable or capable of damaging the reputation of the Companies or that of any Card Scheme, Other Payments Organisation or Other Financial Institution; or
(2) to be detrimental to the Companies’ systems, business or that of any Card Scheme, Other Payments Organisation or Other Financial Institution; or
(3) may or does give rise to fraud or any other criminal activity or suspicion of fraud or any other criminal activity; or
(4) may or does give rise to increased risk of loss or liability to any of the Companies;
(5) may affect the Merchant’s ability or willingness to comply with all or any of the Merchant’s obligations or liabilities under this Agreement; or
(6) to be or to be for a purpose contrary to Applicable Law and/or any policy of the Companies in relation to Applicable Law;
(O) fails to perform any of the Merchant’s obligations under clause 11 (strictly in accordance with the timeframe set out therein); or
(P) includes anything in the Application Form which is untrue, inaccurate or misleading.
12.6 The Companies may terminate this Agreement (or terminate or suspend the provision of all or part of any Service under this Agreement) with immediate effect, giving written notice, if:
(A) the Companies or any of its Group Companies become entitled to terminate any other agreement with the Merchant;
(B) the Companies or any Other Financial Institution become entitled to enforce any guarantee or security from or in relation to the Merchant;
(C) the Companies are required to do so by any Card Scheme or Regulatory Authority or under the Network Rules or Applicable Law or reasonably believes that a Transaction or Outward Payment or this Agreement or the performance of it may be contrary to Applicable Law or Sanctions (and the Merchant acknowledges that no Group Company of the Companies is obliged to provide any Service if it reasonably believes such provision would result in a failure to comply with any Applicable Law, Sanctions or the Network Rules);
(D) a Card Scheme, Other Payments Organisation, Other Financial Institution or any other Third party or any ceases to provide the Companies with any Service or service necessary for the Companies to provide a Service to the Merchant;
(E) the Merchant installs and/or uses the Terminal(s) at a place other than the premises at which the Merchant has previously informed the Companies the Terminals shall be installed and used;
(F) the Companies reasonably consider that any act or omission of the Merchant falls within a Reason Code;
(G) the ratio of Chargebacks to Transactions exceeds one per cent (1%) by number or value, or the Companies otherwise consider in our sole and absolute discretion that the total volume or value of Refunds, Chargebacks and/or declined Authorisation Requests is excessive;
(H) any Regulatory Authority or court of competent jurisdiction (an “Authority”) has taken action or made statements, orders, requests, directives or demands regarding the Merchant’s activities or another person operating in the Merchant’s industry (the “Actions or Communications”) and the Companies determine in its sole and absolute discretion that the Actions or Communications of any Authority may harm or otherwise adversely affect, directly or indirectly, the reputation or goodwill of the Companies or any applicable Network Rules making body if the Companies continue to process Transactions under this Agreement;
(I) any of the above provisions of clauses 12.4(B) to (J), 12.4(O) and clauses 12.5(A) to (D) applies to a Person who provides any security under clause 11; or
(J) any changes to or of Applicable Law, including Sanctions, (i) prohibit the Companies from exercising any of the rights and/or performing any of obligations under this Agreement, (iI) subject either Party to potential penalties or enforcement actions by any Regulatory Authority or Sanctions Authority under Applicable Law, or (iII) frustrate in any way the performance of the Agreement by either Party.
12.7 The Merchant shall inform the Companies upon becoming aware of any of the events set out in the following clauses: clauses 12.4(A) to (J) and clauses 12.5(A), (B), (E), (G) and (H).
12.8 Where any additional party specified in Schedule 1 serves the Merchant notice to terminate this Agreement under this clause 12, such termination shall only relate to the Services provided by that additional party. This shall not limit any other Party’s right to terminate this Agreement or any other Services.
12.9 The Merchant acknowledges and agrees that suspension or termination by the Companies in accordance with clauses 12.4 and 12.5 shall in no way create any cause of action, Losses, Claim or any other right (the “Action”) in favour of the Merchant against the Companies whether under Applicable Law, contract, equity or otherwise. Without prejudice to the foregoing and notwithstanding clause 25 (Waiver), the Merchant hereby waives, and fully releases and discharges the Companies and its Group Companies from, any Action the Merchant may otherwise have arising from the Companies exercising such suspension or termination right, including any challenge in relation to the exercise of the Companies’ discretion, and the Merchant agrees that the Merchant shall not apply to any Authority for any form of relief, including (without limitation) injunctive relief, that could constrain or prevent the Companies from exercising any of its rights of suspension or termination.
13. CONSEQUENCES OF TERMINATION
13.1 Upon termination of this Agreement all rights and obligations of any Party shall cease to have effect immediately, save that:(A) the clauses which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination; and(B) termination shall not affect accrued rights and obligations of any Party under this Agreement as at the date of termination.
13.2 Upon termination of this Agreement, the Merchant shall immediately pay to the Companies all amounts owed by the Merchant to the Companies under this Agreement and the Companies shall immediately pay the Merchant all amounts owed to the Merchant by the Companies under this Agreement, subject to the provisions of clauses 5, 6 and 10.
IMPORTANT NOTE: This Merchant must read these indemnity provisions carefully. They provide important protections for both Parties. The indemnities in this clause are in addition to and do not affect any other indemnity under or in connection with this Agreement, including without limitation in connection with clause 11, the Terminal Hire Agreements.
14.1 How Merchant indemnifies Companies: The Merchant will indemnify the Companies and hold the Companies harmless and indemnified from, against and in respect of all and any Losses in relation to any Claims brought against the Companies by a Buyer, Card Scheme, Card Issuer, Other Financial Institution, Other Payments Organisation, Acquirer, Regulatory Authority or any other Third party, to the extent such Claims arise out of or in consequence of or in connection with:
(A) a Transaction (including the failure to retain or produce a Recurring Transaction Authority), Refund, Representment, Retro-Charge, Assessment, Chargeback and/or Chargeback Cost (including any activity which would otherwise constitute a Transaction, Refund, Representment, Retro-Charge);
(B) any breach of the requirements or failure by the Merchant to comply with: (i) the requirements of a Card Scheme; (iI) the Network Rules; (iII) a Regulatory Authority; or (iv) Applicable Law, and any reasonable steps taken in the protection of the Companies’ interests in connection with any such breaches;
(C) any security breach as described in clause 17.10, compromise or theft of Data held by the Merchant or on behalf of the Merchant, or any other security breach or a security breach relating to Data (whether or not the Merchant has complied with PCI SSC Standards as defined in clause 17.8), and any reasonable steps taken in the protection of the Companies’ interests in connection with such breach;
(D) the enforcement or attempted enforcement of this Agreement;
(E) any reasonable steps taken in the protection of the Companies’ interests in connection with any allegation of fraud made in relation to the Merchant or its business; and/or
(F) any breach by the Merchant of the provisions of clause 23;except if and to the extent such Claim is caused by the Companies’ fraud or any breach of this Agreement by the Companies.
14.2 How the Companies indemnify the Merchant: The Companies shall indemnify and hold the Merchant indemnified from and against any Losses in relation to any Claims brought against the Merchant by a Third party, to the extent such Claims arise out of or in connection with:
(A) any actual security breach or security breach reported to the Merchant by a Card Scheme, Acquirer, Card Issuer or the Companies relating to Data which is directly attributable to the Companies’ failure to comply with any PCI SSC Standards or to the Companies’ negligence (but not including any claims made by a Regulatory Authority), and any reasonable steps taken in the protection of the Merchant’s interests in connection with such breach; and/or
(B) any breach by the Companies of the provisions of clause 23;except if and to the extent caused by or contributed to by the Merchant’s negligence or any breach of this Agreement by the Merchant.
15. EXCLUSION AND LIMITATION OF LIABILITY
IMPORTANT NOTE: THIS CLAUSE 15 CONTAINS IMPORTANT EXCLUSIONS AND LIMITATIONS ON THE COMPANIES’ LIABILITY. THE MERCHANT MUST READ THIS CLAUSE CAREFULLY.
15.1 Matters not excluded or limited by this Agreement: Nothing in this Agreement shall exclude or restrict liability for:
(A) losses suffered by a Party arising out of the other Party’s fraud, fraudulent misrepresentation or wilful default;
(B) death or personal injury resulting from a Party’s negligence;
(C) any breach of any obligations implied by Sales of Goods Ordinance, laws of Hong Kong;
(D) losses suffered by the Companies in respect of any Chargebacks or Assessments recoverable under clause 6 and/or 14;
(E) any Fees or other amounts due by the Merchant to the Companies;
(F) (except in respect of the types of Losses listed under clause 15.2) for any indemnity provided hereunder; or
(G) any other liability to the extent it cannot be lawfully excluded or limited, and each of the following provisions of this clause 15 is subject to this clause 15.1.
15.2 Limitations and exclusions of liability for both Parties: Each Party shall only be liable for direct Losses arising out of or in connection with its own breach of this Agreement or negligence EXCEPT THAT neither Party will be liable to the other Party under or in connection with this Agreement or its subject matter for any of the following types of Losses arising under or in connection with this Agreement (whether arising out of breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty, liability under indemnities or otherwise):
(A) loss of profits, revenue or anticipated savings (including those anticipated or forecast);
(B) loss of goodwill (or any other damage to reputation);
(C) loss connected with or arising from business interruption;
(D) loss of opportunity, business or contracts;
(E) loss of bargain;
(F) lost or corrupted data (or loss associated with the same); and/or
(G) any special, incidental, punitive, consequential or indirect: loss, damage, cost and/or expense whatsoever,
in each case whether such losses are direct, indirect or consequential, and even if that Party was aware of the possibility that such losses might be incurred by another Party.
15.3 Interest: Subject to clause 15.2, the Merchant shall not be entitled to any interest or any other compensation whatsoever in respect of any sums held by the Companies in accordance with this Agreement prior to Remittance being made to the Merchant for any period during which payment may be:
(A) deducted, withheld, deferred or not paid under clause 5;
(B) set-off under clause 10; or
(C) not paid due to a suspension of Services (or part thereof) under clause 12,unless the Merchant demonstrates that such non-payment results from breach of the Companies’ obligations under this Agreement, in which case interest accrues on a daily basis until the date of payment calculated at the rate specified in clause 9.
15.4 Companies excluded liability: The Companies shall not be liable for any failure to perform (nor any defective or delayed performance of) any of the Companies’ obligations under this Agreement if and to the extent that such failure is due to:
(A) circumstances beyond our reasonable control;
(B) any cessation or interruption of any part of the Services which are due to any act or omission of a Third party (including, but not limited to, Other Financial Institutions, Other Payments Organisations and is not caused by Companies’ breach of this Agreement;
(C) the Companies taking steps (in reasonable and honest belief or view) to comply with any relevant requirement under the Network Rules or any Applicable Law or the requests of any Regulatory Authority;
(D) Merchant’s failure to provide complete and/or correct Data to the Companies, any Other Financial Institution, Card Scheme or Other Payments Organisation) and/or Merchant’s negligence and/or breach of this Agreement;
(E) a suspension of Services by us under clause 12;
(F) Merchant’s breach(es) of this Agreement, negligent, wrongful or bad faith acts or omissions; or
(G) any deferment/withholding of any Remittance otherwise due to the Merchant effected pursuant to the provision of this Agreement.Additionally, the Companies shall have no liability to the Merchant for any inaccuracy in the information the Companies or any Other Financial Institutions provide to any Third parties pursuant to clause 19.
15.5 Limitation of Liability: The aggregate liability of each Group Company of the Companies and each of the additional parties listed in Schedule 1 to the Merchant in relation to all Claims arising out of, or in connection with the Services or this Agreement during each Contract Year shall be limited to:
(A) in the first Contract Year, a sum equal to the average monthly Fees paid under this Agreement, less any fees incurred by the Companies under the Network Rules in respect of Transactions, in each case in the period between the Commencement Date and the first event giving rise to the first such Claim, multiplied by twelve (12); and
(B) in each Contract Year thereafter, a sum equal to the Fees paid under this Agreement, less any fees incurred by the Companies under the Network Rules in respect of Transactions, in each case in the twelve (12) months immediately preceding the first event giving rise to the first such claim in the relevant Contract Year.
15.6 Additional exclusions and limitations: In addition to any other exclusion or limitation of liability contained in this Agreement, the following additional exclusions and limitations apply in relation to the Services:
(A) the Companies accept no responsibility, and shall not be liable for (a) the accuracy or reliability of any data the Merchant sends to the Companies; (b) the Companies’ interpretation of that data; or (c) the consequences or accuracy of the Companies’ interpretation of that data or any subsequent interpretation or risk assessment the Merchant undertakes in relation to that data.
(B) the Data available via Merchant Data Account is supplied to the Merchant on an “as is” basis for information only and is not intended to be relied upon by the Merchant for any purpose whatsoever.
(C) the Companies do not warrant that the Data available via Merchant Data Account is accurate, sufficient, up-to-date, reliable or error-free at the time it is accessed.
(D) the Companies accept no responsibility, and shall not be liable for any Third Party Product the Merchant uses in connection with the Service, and any reference by the Companies to a Third Party Product (including in any technical specification the Companies provide to the Merchant), or approval by the Merchant in connection with clause 3.2(H), shall not constitute any recommendation or endorsement by the Companies of that Third Party Product, or any warranty or representation that such Third Party Product will be or remain compatible, compliant and/or suitable for the Merchant uses and/or with the Services, or will deliver any specific result.
(E) The electronic transmission of Data, including but without limitation to transmission via the internet cannot be guaranteed to be secure or error-free. There is always a possibility that Data sent by electronic means could be intercepted by a Third party, corrupted, lost, destroyed, delayed or otherwise adversely affected. As a result, the Companies shall not be liable to any Party in respect of any error or omission arising from or in connection with the electronic transmission of information to the Merchant or its reliance on such Data. This includes but is not limited to acts or omissions of the Merchant’s and/or the Companies’ internet service providers. This exclusion of liability shall not apply in the event of any proven criminal, dishonest or fraudulent acts on the Companies part.
15.7 Basis of exclusions and limitations: The Merchant acknowledges, represents and agrees that, given the nature of the Services:
(A) other suitable alternative payment methods for the Buyers are available to the Merchant;
(B) the Merchant was able to choose other providers of services similar to the Services before entering into this Agreement;
(C) the Merchant acknowledges and accepts the risk of any Losses which the Merchant may suffer and be unable to claim for because of the exclusions and limitations on the Companies’ liability under this clause 15, and the importance of insuring against such Losses;
(D) the Fees have been calculated by the Companies taking into account the exclusions and limitations contained in this Agreement (which would be uneconomical but for such exclusions and limitations); and
(E) the Companies would not be in a position or willing to enter into this Agreement (or any similar agreement) with the Merchant or other merchants but for these exclusions and limitations of liability.
16.1 The Merchant shall only use such materials identifying the Services, the Companies, any Group Company of the Companies, any Card Scheme or any Alternative Payment Method if such materials have previously been approved by the Companies in writing (such approval not to be unreasonably withheld).
16.2 The Merchant shall display prominently on each of its premises, trading venues or website where the Merchant accepts or states that the Merchant accepts Cards or Alternative Payment Methods for payment, the Card and Card Scheme identification or Alternative Payment Method identification:
(A) as required by the Network Rules; and
(B) as notified to the Merchant from time to time (whether to inform the Merchant of such Network Rules (including amendments to Network Rules) or otherwise).
The Parties’ roles as independent Data Controllers
17.1 The Parties agree that, for the purposes of Data Protection Legislation, it is their mutual understanding that the Parties shall not constitute joint Data Controllers. Each Party acknowledges and agrees that, for the purposes of Data Protection Legislation, it is an independent Data Controller of Transaction Personal Data and that it determines the purposes for which and the manner in which the Transaction Personal Data is, or is to be, processed.
17.2 If the Merchant receives any complaint, notice or communication from a Data Protection Authority which relates directly to:
(A) the Companies’ Processing of the Transaction Personal Data; or
(B) a potential failure by the Companies to comply with Data Protection Legislation in respect of both Parties’ activities under or in connection with this Agreement,the Merchant shall, to the extent permitted by Applicable Law, promptly notify us and provide such information as it shall reasonably request in that regard.
17.3 The Merchant acknowledges that the Companies may disclose Transaction Personal Data to any Data Protection Authority, law enforcement authority or regulator.
Fair Processing notices and consents
17.4 The Merchant shall ensure that, in respect of all Transaction Personal Data the Merchant provides to the Companies under this Agreement, and in respect of the use of such Transaction Personal Data under this Agreement: (a) all necessary fair processing notices have been provided by the Merchant to the relevant Data Subjects which specify QFPay as a Data Controller in respect of the Data Subject’s Personal Data and provide a link to the Privacy Statement or include a statement that the Privacy Statement can be found on the Companies’ corporate website and that the Merchant has obtained from the relevant Data Subjects all applicable consents, and (b) all necessary steps have been taken to ensure that such Transaction Personal Data has been gathered and Processed in accordance with the principles set out in the Data Protection Legislation, including in particular those relating to (i) lawful, fair and transparent Processing; (iI) specified, legitimate and explicit purposes of Processing; and (iII) adequate, relevant and not excessive Processing.
17.5 To the extent that the Companies are Processing the Merchant’s personal data, for example the Merchant is a sole trader, please refer to the Privacy Statement for information about how the Companies use the Personal Data.
17.6 The Companies may make periodic searches of, and provide information about the Merchant to credit reference, market research, customer feedback and fraud prevention agencies, and Group Companies and agents. Such information as is provided to credit reference agencies may be used by other credit providers to take decisions about the Merchant. Further information about how the Companies use this information can be found in the Privacy Statement.
17.7 Whenever the Companies request it, the Merchant shall give the Companies reasonable assistance to facilitate the successful collection and delivery of all Data. The Companies shall assist the Merchant, upon the Merchant’s request, where the Companies are reasonably able to gain access to the Data, but reserves the right to make reasonable charges for doing so. The Merchant shall promptly pay such reasonable charges to the Companies on demand.
17.8 If a Data Subject makes a written request to either Party to exercise any of their rights under Data Protection Legislation in respect of Transaction Personal Data, the receiving Party shall respond to that request in accordance with Data Protection Legislation. To the extent the request concerns processing of Transaction Personal Data undertaken by the other Party, the receiving Party shall promptly and without undue delay forward the request to the other Party; and cooperate and provide reasonable assistance in relation to that request to enable the other Party to respond in accordance with Data Protection Legislation.
Merchant’s PCI and other compliance requirements
17.9 The Merchant acknowledges and agrees that the Merchant (and agents, sub-contractors or any Third parties used by the Merchant) shall abide by any data security standards of the Payment Card Industry Security Standards Council (or any replacement body notified to the Merchant by the Companies) and the Card Schemes and Alternative Payment Method schemes, including the PCI SSC Standards. The Companies may charge the Merchant an annual management fee (specified in the Pricing Schedule) for administering the system through which the Merchant reports PCI SSC Standards compliance status to the Card Schemes, and a PCI SSC Standards non- compliance fee (also specified in the Pricing Schedule) for each month in which the Merchant is not compliant with the PCI SSC Standards.
No prior security breaches
17.10 The Merchant represents, warrants and undertakes that no security breach relating to Data processed by or on behalf of the Merchant has occurred before the date on which this Agreement was signed by the Parties and/or the Commencement Date. If the Merchant breaches the foregoing representation, warranty and undertaking, the Merchant acknowledges and agrees that the Companies may suspend the Services (including as required under the Network Rules) and/or (if unremedied) take such other steps as the Companies, any Card Scheme, Regulatory Authority or any Other Financial Institution or Other Payments Organisation reasonably considers necessary to remedy the breach.
Notification of security breaches
17.11 The Merchant shall notify the Companies immediately if the Merchant becomes aware of or suspect any security breach relating to Data (whether or not the Merchant has complied with the PCI SSC Standards). As soon as reasonably practicable, the Merchant shall also (and without prejudice to any other remedy the Companies have in respect thereof) immediately identify and resolve the cause of such security breach and take any steps that the Companies may require of the Merchant to do so, including but not limited to the procurement (at Merchant’s cost) of forensic reports from Third parties recommended by the Companies.
Do not store card details
17.12 The Merchant shall not store (as such term is used in the PCI SSC Standards), at any time:
(A) Card verification value in the magnetic stripe;
(B) Card verification value printed on the Card in or next to the signature panel;
(C) Card verification value contained in the magnetic stripe image in a chip application;
(D) PIN verification value contained in the magnetic stripe;
(E) the full contents of any track from the magnetic stripe (on a Card, in a chip or elsewhere); or
(F) any other Data that the Card Schemes mandate from time to time as Data that cannot be stored.
18. RETENTION OF RECORDS
18.1 In addition to complying with all record retention provisions under Applicable Law, and subject to the requirements of the PCI SSC Standards, the Merchant shall retain legible copies of Data for a minimum period of six (6) years from the date of each Transaction.
18.2 Nothing in this Agreement (including this clause 18) affects or limits the Merchant’s own requirement to have in place adequate record retention policies and procedures as necessary and appropriate for Merchant’s own business purposes, which are and remain responsibility of the Merchant.
19. PROVISION AND DISCLOSURE OF DATA AND INFORMATION
19.1 This clause 19 contains important information about the provision and disclosure of data and information in connection with the Services. It should also be read alongside the Privacy Statement.
19.2 The Companies may, from time to time, request the Merchant to provide copies of Data, in which event the Merchant shall provide such copies to the Companies, in such format specified by the Companies, within ten (10) days of such request being received.
19.3 Upon Companies’ request, the Merchant shall at all times throughout the term of this Agreement (and for such subsequent period as may be necessary thereafter):
(A) promptly discloses to the Companies or any Other Financial Institution, Card Scheme or Other Payments Organisation such accurate, complete and reliable information as the Companies or such Third party reasonably require(s) relating to the performance of the Services or obligations under this Agreement, the Network Rules or Applicable Law;
(B) takes all reasonable steps to assist the Companies and/or any Other Financial Institution, Card Scheme or Other Payments Organisation in handling any Claim or query raised by a Buyer, a Card Issuer, a Card Scheme or any other third party in relation to the Services or any Transaction, Chargeback, Refund, Representment or Retro-Charge;
(C) co-operates in providing any Other Financial Institution Card Scheme or Other Payments Organisation with all information requested by it in order for the Merchant or its Transactions to be accepted by such Third party or otherwise to enable the Companies to provide the Merchant with any of the Services (or any part thereof);
(D) to enable the Companies to assess the Merchant’s financial position throughout the term of this Agreement, provide the Companies with the Merchant’s latest audited accounts and any other accurate, complete and reliable information the Companies may reasonably require (including but not limited to management accounts).
19.4 The Merchant hereby authorises:
(i) the Companies;
(iI) any Other Financial Institution;
(iII) any Other Payments Organisation; and
(IV) any credit institution at which the Merchant maintains the Merchant Bank Account,to use, share and release Data and any other information relating to the Merchant, including information relating to the Merchant which is held in connection with the provision of the Services and/or by the Card Schemes, Other Financial Institutions or Other Payments Organisations (or, if instructed by the Companies, the Merchant shall provide such Data or information or procure that such Data or information is provided), to any Person, including the Group Companies of the Companies and their respective officers, Card Issuers, Card Schemes, Regulatory Authorities, law enforcement agencies, fraud prevention agencies and credit reference agencies, and Third parties:
(A) for the purpose of fulfilling the Companies’ or any Other Financial Institution’s obligations under the Agreement or the Network Rules or requirements of an Other Payments Organisation or otherwise as required by Applicable Law;
(B) to assess financial and insurance risks;
(C) in relation to any breach of, or to enforce, this Agreement;
(D) to recover debt or in relation to the Merchant’s insolvency;
(E) to maintain and develop customer relationships, services and systems;
(F) to prevent and detect fraud or crime;
(G) in the course of any investigation by the Companies, any Other Financial Institution, Regulatory Authority, Card Scheme, Other Payments Organisation or any Third party into any suspected criminal activity;
(H) regarding information security, the risk of fraud, sector risk and credit risk; and
(I) to enable the Card Schemes to assign a Reason Code to any undesirable act or omission.Where the Merchant has been referred to the Companies through a Third party, whether under an affiliate, partnership marketing or other introducer type arrangement, the Merchant authorises the Companies to release Data to relevant third parties as necessary for the operation of such arrangement and/or to fulfil our reporting obligations to such Third parties.
19.5 The Merchant shall advise the Companies in writing as soon as the Merchant becomes aware (and in any event within 48 hours) of any:
(A) other agreement that the Merchant enters into concerning acceptance of Transactions;
(B) act, omission or error which does or may cause material loss or damage to us or any Other Financial Institution, Card Scheme or Other Payments Organisation) (including damage to the reputation of the Companies or any such Third party, which for the avoidance of doubt shall be deemed to be material in every instance in which it occurs);
(C) actual or suspected violation or compromise of the security or integrity of any Data or any other information relating to the Services or the Card Schemes or any of our Confidential Information at any time obtained or held by the Companies.
19.6 If the Merchant contacts the Companies electronically, the Companies may collect the Merchant’s electronic identifier (for example, Internet Protocol (IP) address or telephone number) supplied by service provider of the Merchant.
19.7 A link between the Merchant and anyone with whom the Merchant has a joint account or similar financial association will be recorded at credit reference agencies, creating a "financial association". All such associated parties' information will be taken into account in future applications until the Merchant or one of them successfully file a "notice of disassociation" at the credit reference agencies.
19.8 The Companies may make periodic searches of and provide information about the Merchant to credit reference agencies, fraud prevention agencies, Card Issuers, Card Schemes and the Group Companies of the Companies to manage and take decisions about their relationship or prospective relationship with the Merchant. Such information may be used by other credit providers to take decisions about the Merchant and its financial associates. The Companies may also review the Merchant and its business activities (including by electronic means) to monitor the Merchant’s compliance with the Agreement.
19.9 The Companies may:
(A) disclose information concerning the Merchant and its Data to Third parties where the Companies aggregate data to facilitate cross-industry analysis and comparisons; and
(B) (without limitation) use and/or disclose Confidential Information and Transaction Personal Data for preparing and furnishing compilations, analyses, and other reports of aggregated information and anonymised information,PROVIDED THAT in each case such compilations, analyses or other reports do not identify (i) the Merchant (other than where the Companies prepare the compilation, analysis or other report either for and to the Merchant or on behalf of the Merchant) or (ii) any Cardholder whose Transactions were the subject of or involved in the preparation of any such compilation, analysis or other report.
19.10 The information which the Companies, and/or any Other Financial Institution or Other Payments Organisation, collect from the Merchant may be transferred to, processed and/or stored at, a proper authority situated outside Hong Kong.
19.11 In the event that the Companies consider that any act or omission of the Merchant falls within a Reason Code, details of any such act or omission shall be advised to the Merchant and shall also be available on request. In addition, the fact of termination (if any) under clause 12.4(H) and the Reason Code forming the grounds for termination shall be notified to (and may be recorded by) the Card Schemes and thereafter be maintained by them in accordance with their normal practice. The aforementioned database records are available for enquiry by any Acquirer and Card Issuer. In certain circumstances, they are also made available to crime enforcement authorities.
20. RIGHT OF AUDIT
20.1 Subject to the rest of this clause 20, upon the Companies’ request, the Merchant shall:
(A) permit or procure the Companies or their duly authorised representatives to have access to all or any of the Merchant’s premises where, or systems on which, the business trades or where records or stock are located, during business hours, to examine all or any such premises, systems, records or stock and those of any other business which the Companies consider is or may be connected to the Merchant; and
(B) permit or procure the Companies or their duly authorised representatives to take and retain copies of all or any such records; and
(C) provide to the Companies or their duly authorised representatives or procure that the Companies or they are provided with honest and comprehensive answers to any enquiries the Companies may make in relation to the Merchant and business,for the purpose of ascertaining whether or not the Merchant is performing the obligations in accordance with all the provisions of this Agreement.
20.2 The Companies shall give the Merchant a minimum of twenty-eight (28) days written notice of any exercise of the rights under this clause 20, except where the requirements of a Regulatory Authority do not permit such notice or the Companies have immediate data security, compliance or fraud concerns, in which case the Companies may give immediate or shorter notice.
20.3 The Companies shall exercise the rights under this clause 20 reasonably and usually no more than once annually during the term of this Agreement unless a Regulatory Authority requires otherwise or there are immediate data security, compliance or fraud concerns, in which case the Companies may give immediate or shorter notice. Additionally, where matters are identified as requiring remediation in a shorter period the Companies may, acting reasonably, exercise the rights more frequently to ascertain whether such remediation has been made.
21. INTELLECTUAL PROPERTY
21.1 The Agreement does not transfer, and is not intended to transfer, to any Party any of the Intellectual Property Rights that any other Party owns at the Commencement Date or any Intellectual Property Rights that are created, acquired or developed during the term of the Agreement.
21.2 The Companies shall not acquire any Intellectual Property Rights in any Merchant Data Account, or any Data, that the Companies makes available to the Merchant under this Agreement.
21.3 Each Party shall obtain the written consent of the other Parties prior to using or referring to any trademarks, logos, copyrighted materials, business names or other similar Intellectual Property Rights in any promotional materials or literature, agreements or on any website.
21.4 On termination of the Agreement, each Party shall remove any reference to the other Parties from any promotional materials or literature, agreements or on any websites.
22. SERVICE ADJUSTMENTS AND AGREEMENT VARIATIONS
22.1 From time to time, the Companies may make changes to the Privacy Statement, adjust the content and interfaces of the Services or make changes to the Services which are necessary to comply with any Applicable Law or Network Rules, or make changes which do not materially affect the nature or quality of the Services. Such adjustments may result in changes to the Customer Operating Instructions and are not subject to prior written notice or any right of termination under clause 22.3. If such adjustments or changes lead to a change in software, interfaces or operating procedures, the Companies shall notify the Merchant as soon as reasonably practicable prior to the implementation of such adjustments or changes.
22.2 From time to time the Companies may change the way of using the Merchant’s information (other than Transaction Personal Data). Where the Companies believe the Merchant may not reasonably expect such a change the Companies shall write to the Merchant. If the Merchant do not object to the change within two (2) months, the Merchant will be deemed to consent to that change.
22.3 The Companies shall be entitled to vary the provisions of the Agreement from time to time by giving the Merchant at least two (2) months’ prior written notice. Such variations may be notified by reference to materials available on the Companies’ website, as set out in clause 26.5. If the Companies make changes to the terms and conditions herein affecting the Merchant’s payment services, the Companies shall be entitled to terminate the Agreement immediately by providing written notice to the Companies, PROVIDED THAT such notice is served upon the Companies within two (2) months of the Merchant being notified of the variation. Otherwise, the Companies will be deemed to have accepted any variation of the provisions of this Agreement two (2) months from being notified of it.
22.4 The Companies may from time to time in our sole discretion withdraw or decommission a product, software or a Service that the Merchant is using and will, if practicable, give the Merchant reasonable prior notice of this.
23. CONFIDENTIAL INFORMATION
23.1 Except to the extent set out in this clause 23, each Party shall:
(A) treat as confidential all Confidential Information obtained from the other Parties under the Agreement;
(B) use the other Parties’ Confidential Information solely for the specific purposes for which it was disclosed;
(C) not publish or otherwise disclose to any person the other Parties’ Confidential Information without the owner’s prior written consent; and
(D) take all action reasonably necessary to secure the other Parties’ Confidential Information against theft, loss or unauthorised disclosure.
23.2 Each Party may disclose Confidential Information that would otherwise be subject to clause 23.1 but only if it can demonstrate that the Confidential Information:
(A) is required to be disclosed by any court of competent jurisdiction, Regulatory Authority, by the rules of a recognised stock exchange or by Applicable Law or the Network Rules;
(B) was lawfully in its possession prior to disclosure to it by any other Party without an obligation restricting disclosure;
(C) is already public knowledge or which becomes so at a future date (otherwise than as a result of breach of this clause 23);
(D) is received from a Third party who is not under an obligation of confidentiality in relation to the information; or
(E) is developed independently without access to, or use or knowledge of, the Confidential Information.
23.3 Notwithstanding the provisions of clauses 23.1, 23.2 and 23.4, the Companies, and/or any Other Financial Institution or Other Payments Organisation, may aggregate and anonymise the Merchant’s Confidential Information (including the Data), and disclose it in that form to any Third party. The provisions of clauses 23.1, 23.2 and 23.4 will not restrict the sharing of any Confidential Information by the Companies to its directors, employees, professional advisors, insurers, Group Companies or sub-contractors who need to know it to provide the Services and/or to manage or enhance the relationship between the Parties, provided that such persons use it solely for such purpose and are under an obligation to us to keep such information confidential.
23.4 Other than as expressly permitted under the Agreement, on termination of the Agreement for whatever reason, each Party shall forthwith cease to use any Confidential Information of the other Parties and shall return on demand, or at the request of the other, destroy or permanently erase all copies of that Confidential Information in its possession or control, save that a Party will be permitted to retain such part of the Confidential Information for the purposes of and for so long as required by any Applicable Law or its legitimate internal compliance requirements. Any obligation to destroy or permanently erase Confidential Information shall not be applicable to Confidential Information that forms part of an electronic back-up system which is not immediately retrievable as part of day-to-day business.
24. ASSIGNMENT, SUB-CONTRACTING AND NOVATION
24.1 The Agreement is personal to the Merchant and the Merchant may not assign, novate or transfer it or any of the rights or obligations under it.
24.2 The Merchant may only use an agent or subcontractor in relation to the performance of the obligations under the Agreement with the Companies’ prior written consent. The Companies may reasonably withdraw that consent at any time.
24.3 The Merchant shall be liable to the Companies for the acts or omissions of:
(A) any of Personnel, whether or not used with the consent that the Companies may give pursuant to clause 24.2;
(B) any of Group Companies of the Merchant; and
(C) any Personnel of any of the foregoing,in the course of or relating to the performance of the Merchant’s obligations under the Agreement or arising out of or in connection with any Transaction, Refund, Representment, Chargeback or Retro-Charge.
24.4 Subject to Applicable Law and the Network Rules, the Companies shall be entitled at any time to assign or transfer the Agreement or the benefit of any or all of the rights under the Agreement and/or to sub-contract our obligations under the Agreement without the Merchant’s consent. Without prejudice to clause 29.4, upon request, the Companies shall execute any documents required to effect any such assignment, transfer or subcontract.
24.5 The Companies shall be entitled to novate any or all of rights and obligations (as appropriate) under the Agreement to a Third party at any time on giving the Merchant at least two (2) months’ notice. If the Companies do this the Merchant shall be entitled to terminate the Agreement within two (2) months’ of the Merchant receiving the notice of the novation. The Merchant will be deemed to have accepted the novation of the Agreement two (2) months from receipt of the notice.
24.6 With effect from the date that the Companies novates the obligations under the Agreement to a Third party (the “Novation Date”), the Merchant shall release and discharge the Companies from further performance of the obligations under the Agreement and from all claims and demands against the Companies, whatsoever arising out of or in respect of the Agreement, whether prior to, on or subsequent to the Novation Date and the Third party shall perform, or procure the performance of, all such obligations under the Agreement, and shall accept all liabilities arising out of or in respect of the Agreement, from the Novation Date.
25.1 No failure or delay by a Party in exercising any of its rights or remedies provided under the Agreement or under Applicable Law shall be construed as a waiver or release of that right or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. The Parties agree and acknowledge that the doctrine of affirmation, by which a Party is deemed to have affirmed a decision to proceed with a contract notwithstanding the enlivening of a right to terminate, shall have no application to the Agreement.
25.2 No single or partial exercise of any of a Party’s rights or remedies under the Agreement or under Applicable Law shall preclude or restrict the further exercise of such right or remedy. A waiver of any breach of any provisions of the Agreement shall not constitute a waiver of any other breach, and shall not affect the other provisions, of the Agreement.
25.3 Subject to clause 27.3, the rights and remedies of a Party under the Agreement are cumulative and not exclusive of each other or of any rights or remedies provided by Applicable Law.
26. NOTICES & OTHER COMMUNICATIONS
26.1 Subject to clause 26.2, any notice to be given under or in connection with the Agreement shall be in writing and signed by or on behalf of the Party giving it and shall be served by (i) delivering it personally (including by commercial courier); or (iI) sending it by post (including by airmail or other international or local mail service in the case of an address for service outside Hong Kong); or (iII) sending it by email, to the email address of the other Party as set out in this Agreement or otherwise as notified by such Party from time to time. For the avoidance of doubt, any notice delivered by email shall not need to be signed.
26.2 (A) Where the Merchant provides an email address, the Companies may send notices to and rely on the authenticity of communications the Companies receive from that email address as being from and binding on the Merchant. The Merchant must ensure only the Merchant and persons with authority to act on the Merchant’s behalf have access to email addresses, that they are kept secure and that the Merchant contacts the Companies immediately if the Merchant becomes aware or suspect any relevant unauthorised use or security compromise.
(B) Unless otherwise agreed by the Companies in writing, notice from the Merchant to the Companies to terminate the Agreement must be delivered to the Companies by post.
(C) Either Party may, as an alternative to any other method of notice, give notice to the other’s registered office address (where it has one). Where the registered office address is not the postal address provided by a party in accordance with clause 26.1, deemed receipt shall be calculated by adding two (2) Business Days to the period for deemed receipt under clauses 26.3(B)-(E) below.
26.3 Any notice given in accordance with this Agreement shall be deemed to have been received:
(A) if sent by email, on the day on which the communication is sent and no report of non-delivery is received by the sender, PROVIDED THAT (i) any notice dispatched after 17:00 hours on any Business Day or at any time on a day which is not a Business Day shall be deemed to have been given at 09:00 on the next Business Day;
(B) if delivered personally, at the time of delivery;
(C) if sent by post within Hong Kong, seven (7) Business Days from the date of posting; and
(D) if the Merchant is outside of Hong Kong, then if sent by post, within fourteen (14) Business Days from the date of posting.
26.4 Notices given by the Companies to the Merchant in hard or electronic format may refer to documents or materials made available on the Companies’ website, by providing the Merchant with a website URL address where the Merchant can access the documents or materials. The full contents of these documents and materials will be deemed to be communicated and notified to the Merchant as if set out in full in the notice.
26.5 In addition to formal notices given in accordance with this clause 26, the Companies may communicate with the Merchant from time to time in relation to the Merchant’s use and the Companies’ provision of the Services by means of newsletters, emails, SMS or text message and messages on the Companies’ website. The Companies may also communicate with the Merchant through products such as Merchant Data Account. Such communications may include notification of changes to the Customer Operating Instructions or Network Rules, or new or replacement products or services in connection with the Services.
27. ENTIRE AGREEMENT
27.1 The Agreement constitutes the entire agreement and understanding between the Merchant and the Companies in respect of its subject matter and supersedes and invalidates all other prior representations, arrangements, understandings and agreements relating to the same subject matter, (whether oral or in writing, express or implied), other than any securities or written pledges, undertakings or assurances which the Merchant may previously have given to the Companies as a condition precedent or in anticipation of the Agreement. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, warranty or understanding other than those expressly set out in this Agreement, save that, notwithstanding the foregoing, the Companies have entered into this Agreement in reliance on the representations of the Merchant set out in the Application Form.
27.2 Save to the extent expressly set out in this Agreement, the Companies hereby exclude all warranties, conditions, terms, obligations, undertakings and representations (whether in each case express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, (including but not limited to implied undertakings of satisfactory quality and reasonable fitness for purpose)) to the fullest extent permissible by Applicable Law, and the Merchant hereby waives irrevocably any rights or remedies the Merchant may otherwise have had in respect of any of the same.
27.3 Nothing in this clause 27, or elsewhere in this Agreement, shall operate to exclude any liability for fraud.
28.1 Each clause and sub-clause of the Agreement is severable. If any provision of the Agreement or any part of it is or becomes invalid under or contravenes Applicable Law, or is held to be unreasonable in the circumstances, or is held by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable:
(A) the remaining provisions shall not be affected and shall remain in full force;
(B) the legality, validity, enforceability and reasonableness of the remainder of the Agreement shall not be affected; and
(C) if such provision would cease to be illegal, invalid, unenforceable or unreasonable if some part of that provision were modified or deleted, the provision in question shall apply with the least such modification or deletion as may be necessary to make the provision legal, valid, enforceable and/or reasonable.
Status of the Parties
29.1 Nothing in the Agreement shall be construed as constituting a partnership, joint venture or agency (except to the extent specified in Schedule 1) between or among the Parties.
29.2 The Merchant agrees, represents and warrants that each of Group Companies of the Companies providing the Services (the “Service Providers”):
(A) is providing its element of the Services as an independent contractor, and not as a partner or joint venturer with the other Parties;
(B) shall be only severally liable in respect of its own obligations under this Agreement;
(C) shall not be liable in connection with the Services provided by the other Service Providers, whether jointly, jointly and severally or at all; and
(D) does not have any specific knowledge of the nature of business of the Merchant, or knowledge of any special circumstances relating to the business, and in any event shall not be deemed to have knowledge of the business beyond the disclosure and description of the same in Application Form.
29.3 Each Party (including each Service Provider) will be deemed to represent to the others, and warrant and agree that:
(A) each Service Provider is providing its element of the Services as an independent contractor, and not as a partner or agent of or joint venturer with the other Parties;
(B) each Service Provider shall be only severally liable in respect of its own obligations under this Agreement;
(C) each Service Provider shall not be liable in connection with the Services provided by the other Parties, whether jointly, jointly and severally or at all;
(D) it is not relying on any communication (written or oral) of any other Party as advice, or on any such communication as an assurance or guarantee;
(E) each other Party is not acting as a fiduciary or adviser to it in respect of the subject matter of this Agreement;
(F) the relationship between each other Party and it is not that of employee or employer, franchisee or franchisor, and/or principal or agent, and contains no similar duty; and
(G) it is acting wholly in the course of business and not as a consumer.
29.4 The Services are offered to and accepted by the Merchant solely for business purposes. The Merchant represents, warrants and agrees that the Merchant shall not use the Services or any part of them outside of the Merchant’s business.
29.5 Where another one of Group Companies of the Merchant receives Services from the Companies, the Merchant agrees to be jointly and severally liable with such Group Companies. If the Merchant is a partnership, each partner will be jointly and severally liable under this Agreement.
29.6 Save as expressly provided, this Agreement is not intended to confer any benefit on any third party, and a Person who is not party to the Agreement shall have no right under The Contracts (Rights of Third Parties) Ordinance to enforce any provision of the Agreement. Any QFPay Group Company involved in providing any of the Services or otherwise to the extent expressly provided shall be entitled under the Contracts (Rights of Third Parties) Ordinance to enforce any term of this Agreement.
29.7 Unless otherwise stated in the Application Form, the provision of the Services under this Agreement is not exclusive.
29.8 The Companies may process payment transactions for any other Person acting in any capacity, including merchant, seller, wholesaler, retailer, payment service provider, credit institution or financial institution.
29.9 At any time after the Commencement Date, the Merchant shall, at our request, execute or procure the execution of such documents and do or procure the doing of such acts and things as the Party so requesting may reasonably require, for the purpose of giving effect to all the provisions of the Agreement.
29.10 Except as provided herein, each Party shall pay its own costs in relation to the negotiation, preparation, execution and carrying into effect of this Agreement and in carrying out any related due diligence.
29.11 This Agreement may be made and executed in any number of counterparts, which together constitute one Agreement.
29.12 This Agreement is in the English language. The Companies are only obliged to communicate with the Merchant in English. The Companies may provide to the Merchant a foreign language translation of this Agreement or any other communication, PROVIDED THAT such translation shall be for information purposes only and in the event of any inconsistency between the English version and the foreign language version, the English version shall prevail.
30. DISPUTE RESOLUTION PROCEDURE
30.1 Subject to the provisions of clause 32, if any dispute between the Companies and the Merchant (each a “disputing party”) arises out of or in connection with this Agreement or its subject matter, formation, validity or enforceability (including non-contractual claims) (each a “dispute”) then, except as expressly provided in this Agreement, the Disputing Parties shall follow the dispute resolution procedure set out in this clause.
30.2 Either Disputing Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with any relevant supporting documentation. Following service of the Dispute Notice, the Representatives of each of the Disputing Parties shall attempt in good faith to resolve the Dispute.
30.3 If the Representatives of the Disputing Parties are for any reason unable to resolve the Dispute with fourteen (14) Business Days of service of the Dispute Notice, either Disputing Party shall be entitled to commence proceedings under clause 31.2.
30.4 If the Dispute is resolved by the Representatives within fourteen (14) Business Days of service of the Dispute Notice in accordance with clause 30.2, the settlement shall be recorded in writing and signed by each of the Disputing Parties within seven (7) Business Days of the end of the period referred to in clause 30.2.
30.5 Nothing in this clause 30 shall prevent either Disputing Party making any application for injunctive relief that it considers necessary to protect its position.
31. GOVERNING LAW AND JURISDICTION
31.1 This Agreement and any Dispute, shall be governed by and construed in accordance with Hong Kong law.
31.2 Subject to the provisions of clause 30, the Parties irrevocably agree, for the Companies’ sole benefit that, subject as provided below, the Hong Kong Courts shall have exclusive jurisdiction over any Dispute. Nothing in this clause shall limit the Companies’ right to take proceedings against the Merchant in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings by the Companies in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction. The Merchant waives any objection to any proceedings in such courts pursuant to this clause 31.2 on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum. Any proceedings brought by the Merchant against the Companies in respect of a Dispute must be brought in the Hong Kong Courts.
The Companies: QFPay Haojin Fintech Limited & QFPay Haojin Services Limited
Address: Units 1207-1211, Tins Enterprises Centre, 777 Lai Chi Kok Road, Hong Kong
Telephone: +852 2613 9299
Facsimile: +852 2771 5195
Attention: compliance team
SCHEDULE 1: The Companies’ Group of Companies and Additional Parties
QFPay Haojin Fintech Limited
QFPay Haojin Services Limited
SCHEDULE 3: DISCLAIMER
The Companies reserve the right to make changes to the Companies’ website, policy and these Terms of Service at any time without prior notice.
SCHEDULE 5: UNREGULATED TERMINAL HIRE TERMS
Part 1: General Hire Terms
1. The following terms and conditions apply whenever the Merchant hires Terminals from the Companies, except where the Merchant qualifies for Regulated Terminal Hire Terms and is in addition to the terms and conditions set out in the Agreement.
2. The agreement between the Companies relating to the Merchant’s hire of the Terminals from the Companies consist of: (a) the provisions relating to the Terminals as set out in the Application Form (including without limitation the minimum hire period and pricing) accepted by the Companies or as otherwise agreed in writing from time to time; and (b) the following hire terms and conditions (together the “Unregulated Terminal Hire Terms”).
3. For the purposes of these Unregulated Terminal Hire Terms:
“Installation Support” means either: (a) where the Terminal is supplied via a courier, remote support via web and/or telephone communication as applicable in the circumstances; or (b) where so communicated by the Companies to the Merchant, installation by a Third party upon appointment and in accordance with the additional costs, terms and conditions as notified by the Companies to the Merchant.
Part 2: The Hired Terminals
4. Minimum Hire Period: The Companies shall provide Terminals and/or Mobile Terminals (together “Hired Terminals”) and Installation Support, for the minimum period of hire shown in the Application Form (or if no minimum period is shown then thirty-six (36) months) (the “Minimum Hire Period”) and continuing thereafter for successive 18 month periods (each a “Renewal Hire Period”) upon the terms and conditions set out herein unless terminated earlier in accordance with paragraphs 20 or 22 below, or clause 12 of the Agreement.
5. Commencement and delivery: The Minimum Hire Period commences on the date of delivery of the Hired Terminals. The Companies agree to accept delivery of the Hired Terminals within 28 days of the Companies notifying the Merchant (which may be by email) that these are ready for delivery. If for any reason the Merchant fails to accept delivery within this timeframe then an administration fee of HK$5,000 will be charged and be payable by the Merchant in accordance with paragraph 26(g) below.
6. The Merchant will provide all necessary power and telecommunication links for the Hired Terminals and the Companies shall not be under any obligation to install any Hired Terminal if such links are not in place.
7. The Merchant will install and use the Hired Terminals only in legitimate trading premises, being premises in which the Merchant has previously informed the Companies that the Hired Terminals are installed. The Merchant will permit the Companies, its employees, agents, sub-contractors or any other person authorised by the Companies (each an “Authorised Person”) to enter the Merchant’s premises (and where relevant the Merchant shall obtain permission for the Companies and any Authorised Person to enter the premises of any Third party) at all reasonable times for the purpose of inspecting, repairing and/or maintaining the Hired Terminals and the Merchant will give such persons all reasonable assistance.
8. INDEMNITY: Until returned and received, or collected by the Companies, each Hire Terminal shall be at the Merchant’s sole risk and the Merchant indemnifies the Companies against any loss or damage to each Hire Terminal howsoever caused (other than fair wear and tear in the ordinary course of usage of each Hire Terminal). The Merchant will take reasonable care of each Hire Terminal, keep it in good working order and not alter, amend or interfere with it or any sign or label affixed to it, PROVIDED THAT the Companies may, where a sign or label becomes worn, replace such sign or label with an identical one the Companies provide the Merchant. The Merchant will report to the Companies any damage to a Hire Terminal.
Part 3: Payment
9. In return for the Companies supplying the Merchant with the Hired Terminals, the Merchant will punctually pay any set-up fee and the initial and subsequent monthly rentals (including during any Renewal Hire Period) as set out in the Application Form or which otherwise apply from time to time, together with any additional service charges of which the Merchant is notified from time to time. Except as set out in paragraph 10 below in relation to Mobile Terminals, the monthly rental payments are payable monthly in arrears by direct debit on the 18th of each month (or the next business day) from a bank account acceptable to the Companies. The Merchant will maintain with its bank an instruction to effect such direct debits. The charges payable under this schedule form part of the Fees, are payable in accordance with the provisions of clauses 4 and 8 of the Agreement, and are in addition to any other Fees, charges or other amounts payable under the Agreement.
10. Where the Merchant has a Mobile Terminal with a fixed hire period of three (3) months or less, the rental and additional service charges of which the Merchant is notified from time to time are payable by the Merchant at the commencement of the fixed hire period.
11. In addition to the Companies’ right to debit the Merchant’s bank account arising elsewhere in the Agreement, the Companies shall be entitled to debit the Merchant’s bank account with the following items: (a) any other sums payable by the Merchant under this schedule; and (b) interest as provided for in clause 9 of the Agreement.
Part 4: Failure to Pay
12. If the Merchant fails to pay any amount under or in connection with this Schedule when due then in addition to any other rights herein (including our right to terminate) the Companies may:
(a) switch off the Hired Terminals until payment is made;
(b) re-possess the Hired Terminals;
(c) exercise the Companies’ rights of withholding, deduction or set-off as described in clause 5.2 of the Agreement above;
(d) charge the Merchant interest on a daily basis on the overdue amount at a rate of 5% per annum over the prime rate published by HSBC from time to time whether before or after judgment has been given;
(e) in addition to the fee referred to in paragraph 26(b) below, charge the Merchant any reasonable costs and expenses incurred by the Companies in endeavouring to collect any unpaid and overdue instalments, including any debt collection agency charges and reasonable legal costs which are incurred by the Companies in exercising the Companies’ rights under this Agreement, including enforcement of it; and
(f) register the default with a credit reference agency, which may impact the Merchant’s ability to obtain credit in the future.
Part 5: Insuring the Terminals
13. The Hired Terminals will remain the Companies’ property. The Merchant shall not sell, charge, encumber, part with possession or otherwise dispose of the Hired Terminals. The Merchant will insure against loss or damage to the Hired Terminals including without limitation for the full replacement value in the sum of HK$3,000 for each of the Hired Terminals supplied to the Merchant. If the Merchant receives any insurance monies the Merchant must hold these on trust for the Companies.
Part 6: Care and use of the Hired Terminals
14. The Merchant will operate the Hired Terminals in accordance with the provisions of any operating manuals or instructions in existence from time to time together with any instructions issued or made available by us from time to time. The Companies may require the Merchant to accept updated software or a replacement Terminal from time to time (including due to industry changes or requirements) and the Merchant agrees to provide reasonable co-operation in making such changes.
15. The Merchant will only use such equipment and materials in connection with the Hired Terminals as have previously been approved by the Companies in writing. Damage to, or malfunction of, the Hired Terminals or any equipment or materials resulting from the use of non-approved equipment and materials will be the Merchant’s responsibility.
16. Mobile interference: The wireless nature of the Mobile Terminals means that their use is subject to the availability of wireless connectivity. No warranty or representation is, has or will be given or made by the Companies that Mobile Terminals will be capable of use free of any interruptions. Without prejudice to paragraph 31, the Companies shall not be responsible for any inability to use the Mobile Terminals if and to the extent caused by electrical interference, problems with telecommunications or satellite links or any other similar circumstances beyond the Companies’ control.
17. The Merchant agrees that any liability the Companies’ may have to the Merchant in relation to all Claims arising in respect of the Companies’ provision of the Hired Terminals under these Unregulated Terminal Hire Terms during each Contract Year shall in each case be limited to (a) in the first Contract Year, a sum equal to the average monthly Terminal Hire Fees paid under these Unregulated Terminal Hire Terms, in the period between the Commencement Date and the first event giving rise to the first such claim, multiplied by twelve (12); and (b) in each Contract Year thereafter, a sum equal to the Terminal Hire Fees paid under these Unregulated Terminal Hire Terms in the twelve (12) months immediately preceding the first event giving rise to the first such claim in the relevant Contract Year.
18. Save for Mobile Terminals, the Merchant will give the Companies three months’ notice in writing of any proposed change to any electrical power supplied or to the telecommunication links in or to the premises where the Hired Terminals is located. The Companies reserve the right to terminate these Unregulated Terminal Hire Terms upon three months’ written notice if the Companies consider the aforementioned changes would or could affect the operation of the Hired Terminals.
19. INDEMNITY: The Merchant will indemnify the Companies against all claims and all losses, costs, expenses, damages and liabilities whatsoever incurred by the Companies (including the cost of repairing, replacing or removing the Hired Terminals) by reason of, or in any way attributable to, the Merchant’s use (including use by the Merchant’s agents, sub-contractors and employees) of the Hired Terminals.
Part 7: Merchant’s right to terminate these Unregulated Terminal Hire Terms
20. The Merchant has the right to terminate these Unregulated Terminal Hire Terms:
(a) by giving the Companies at least one month’s written notice expiring at the end of the Minimum Hire Period, or the end of the then applicable Renewal Hire Period as the case may be;
(b) by one month’s written notice in accordance with the provisions of paragraph 27 if a variation of these Unregulated Terminal Hire Terms gives rise to a right of termination.
21. If the Merchant gives notice to terminate these Unregulated Terminal Hire Terms relating to the Hired Terminals, this shall not automatically terminate the other provisions of the Agreement or the Services other than the Terminal Hire. The Agreement shall remain in place unless otherwise agreed between the Parties.
Part 8: The Companies’ right to terminate these Unregulated Terminal Hire Terms
22. In addition to the provisions of paragraph 18 of this Schedule and clause 12 of the Agreement the Companies have the right to terminate these Unregulated Terminal Hire Terms:
(a) by giving one month’s written notice expiring on or at any time after the expiry of the Minimum Hire Period;
(b) at any time with immediate effect by notice to the Merchant if the Merchant fails to pay any amount due on the due payment date or if the Merhant is otherwise in default and is deemed to have repudiated these terms by breaching thereof.
(c) by three month's written notice if paragraph 18 applies;
23. The Merchant agrees that termination of the Agreement will automatically terminate these Unregulated Terminal Hire Terms at the same time, unless the Companies otherwise agrees (at their sole discretion).
Part 9: What the Merchant must pay if these Unregulated Terminal Hire Terms are terminated
24. Upon termination of these Unregulated Terminal Hire Terms:
(a) the Merchant will immediately return the Hired Terminals to the Companies at such place within Hong Kong as the Companies reasonably requires, in good order, repair and condition (fair wear and tear only excepted) or to an Authorised Person or allow the Companies or an Authorised Person to enter the Merchant’s premises (and where relevant the Merchant shall obtain permission for the Companies and any Authorised Person to enter the premises where the Hired Terminals are or where the Companies believe them to be) to remove the Hired Terminals; and
(b) the Merchant will immediately pay the Companies all amounts owed by the Merchant under these Unregulated Terminal Hire Terms.
25. Where these Unregulated Terminal Hire Terms have terminated (for whatever reason) prior to the expiry of the Minimum Hire Period or any subsequent Renewal Hire Period (as the case may be), then in addition to the provisions of paragraphs 8 and 9 above, the Merchant will pay to the Companies:
(a) all arrears of rental payments outstanding at the date of termination;
(b) a sum equal to the aggregate of all rental payments which would, but for the termination of the Agreement, have become due and payable under the Unregulated Terminal Hire Terms from the date of termination to the expiry of the Minimum Hire Period (or to the expiry of the applicable Renewal Hire Period as the case may be) less a discount of 5% of each rental. The Merchant agrees that the liability under this paragraph 25(b) shall accrue prior to termination of the Unregulated Terminal Hire Terms.
(c) damages for any breach of the Unregulated Terminal Hire Terms and all costs, expenses and fees incurred by the Companies in recovering possession of the Hired Terminals and/or enforcing the Companies’ rights under the Unregulated Terminal Hire Terms;
(d) if the Hired Terminals are not recovered by us within 1 (one) week after termination of the Unregulated Terminal Hire Terms, an amount of HK$500 in respect of each of the Hired Terminals for each week or part thereof that the Merchant retains possession of the Hired Terminals beyond such termination (such amount being the sum that the Companies ordinarily charge where Hired Terminals are hired from us on a weekly basis); and
(e) if the Hired Terminals are not recovered by the Companies within one month after termination of the Unregulated Terminal Hire Terms, an amount equal to our reasonable estimate of the market value of the Hired Terminals at the date of termination.
Part 10: Other charges under the Unregulated Terminal Hire Terms
26. On notification to the Merchant, the Companies may from time to time vary the rental charges, other charges or payments and/or the terms and conditions of these Unregulated Terminal Hire Terms. Any such variation shall become effective upon the Companies giving the Merchant at least one month’s written notice in accordance with clause 26. In circumstances where the variation constitutes a material variation to these hire terms and conditions, the Merchant shall be entitled to terminate these Unregulated Terminal Hire Terms upon one month’s written notice PROVIDED THAT such notice is served upon the Companies within one month of the Merchant receiving the notice of variation.
Part 11: General Provisions
27. The Merchant agrees that the Companies may assign, novate, transfer or subcontract any or all of the rights and obligations under this Schedule and/or ownership of the Hired Terminals to a Third party at any time without the Merchant’s consent. The Merchant shall execute any document reasonably required by the Companies to give effect to any such assignment, novation or subcontracting.
28. Such other clauses as by their nature are intended to survive termination, will continue to apply in respect of the Hired Terminals following termination of these Unregulated Terminal Hire Terms for whatever reason.
29. If the Merchant is a partnership, each partner will be jointly and severally liable under the Unregulated Terminal Hire Terms.
30. The Companies shall not be liable for any delay or failure to carry out any of the obligations under the Unregulated Terminal Hire Terms if such failure is due to circumstances beyond direct control.
31. These Unregulated Terminal Hire Terms are personal to the Merchant and the Merchant may not assign or transfer them. If the Merchant is an individual, the Unregulated Terminal Hire Terms will be binding upon its personal representatives.
SCHEDULE 6: CARD SCHEMES
China UnionPay / UnionPay International
Diners Club International
Discover Financial Services
SCHEDULE 7: PRICING SCHEDULE
Please refer to the Pricing Schedule in the Application Form as amended or replaced from time to time.
A Illegal products and services
B Products and services that infringe intellectual property rights
C Products and services that are unfair, predatory, or deceptive
D Adult content and services
E Certain legal services
F Certain financial services
G Firearms, explosives and dangerous materials
I Misuse of QFPay products
K OIL, Fuel
QFPay Payment Express Onboarding Scheme
The QFPay Payment Express Onboarding Scheme is a fast credit card onboarding program which aims to facilitate the progress of application for Card Acquiring Services (the "QPEO Scheme") that it will accelerate. Only Merchants who fulfill the requirements of the QPEO Scheme will be able to apply for the QPEO Scheme (the " QPEO Merchant") by the Companies. The Companies reserve the right to determine whether the Merchant shall be able to apply for the QPEO Scheme.
T&C for the Program
A. High Risk Businesses and Prohibited Goods and Services
1. The Companies have internal criteria for identifying high risk businesses or activities (collectively, “High Risk Businesses”). The list of High Risk Businesses is specified in the link of the QFPay Payment Express Onboarding Application Form (P.4).
2. The QPEO Merchant undertakes to engage a normal retail business that is not included any High Risk Businesses and Prohibited Goods and Services.
3. If the Merchant's business is within the scope of High Risk Businesses, the Program will not be applicable. However, the Merchant is still able to apply for Card Acquiring Services. Please contact and seek advice from the Companies' representatives. The Merchant will be required to submit full set of the Due Diligence Documents for KYC procedures. (Details please refer to the Terms and Conditions for Card Acquiring Services). The Companies will assess the risk of the Merchant's business to determine whether the application for Card Acquiring Services will be approved or not. The Companies may adjust the Service Fee and Settlement Period in accordance with the risk of the Merchant's business. The Companies may add to or update the list of High Risk Businesses and Prohibited Goods and Services at any time.
B. Goods and services delivery by Merchant
1. The QPEO Merchant undertakes that all goods and services must be delivered to its customers within 14 days when the order placed.
2. The QPEO Merchant undertakes to handle and resolve any complaint and dispute, including but not limited to, the quality and the delivery of goods and services within 5 days.
C. Additional risk assessment to be performed by the Companies
1. The Companies reserve the right to perform additional risk assessment by requiring to collect additional information from the QPEO merchant and adjust the offer accordingly if the QPEO Merchant's annual transaction amounts has reached HK$7.8m.
1. Any violation or suspicious violation of the above T&C by the QPEO Merchant, the Companies reserve the right to adjust the offer or terminate the Card Acquiring Services and hold the unsettled fund up to 365 days.
2. At any time during the application, the Companies may require additional information from the QPEO Merchant to verify beneficial ownership or control of the business, validate information the QPEO Merchant provided, verify the QPEO Merchant's representative’s identity, and assess the risk associated with the business. This additional information and documents may include business licenses, or other information related to the QPEO Merchant's business or its beneficial owners.
3. The QPEO Merchant acknowledges that the Companies may use the QPEO Merchant's information to verify any other information the QPEO Merchant provide to the Companies, and that any information the Companies collect may affect the Companies' assessment of the QPEO Merchant's overall risk to the business. The QPEO Merchant acknowledges that in some cases, such information may lead to rejection of the application or suspension or termination of the MID Account. The Companies may periodically update this information as part of underwriting criteria and risk analysis procedures. The QPEO Merchant's failure to provide this information or materials may result in rejection of the application or suspension or termination of the MID Account.
4. The QPEO Merchant undertakes to comply with the Terms and Conditions for Card Acquiring Services.
Last update: Apr 2023
The Small Business Program(“SBP")
QFPay's SBP is designed to support small businesses in Hong Kong. It offers a Special Service Fee on payment service of Visa and Mastercard transactions of the card-presented Merchants (Offline Merchant) of the designated Small and Medium Enterprises (“SME”) (as defined below). The Special Service Fee is only applicable to the Merchants who fulfil the requirements of the SBP as determined by QFPay. QFPay reserves the right to determine whether the merchants shall apply for the SBP without any prior notification.
A. Definitions and interpretation
1. Special Service Fee: If a Merchant meets the eligibility criteria forthe SBP, they will be offered a special service fee on payment services of Visaand Mastercard transactions which is lower than standard service fee.
2. MCC Codes: QFPay has specified certain MCC codes that are not eligible for the SBP. The prohibited MCC codes include high-risk businesses as well as other codes listed by QFPay.
3. Program Participation: Merchants who apply for the SBP must meet the eligibility criteria. QFPay will review each application and determine whether the Merchant qualifies for the program. Merchants who are accepted into the program will be notified and provided with the necessary information to begin participating.
B. Eligibility Criteria for SBP
To be eligible for the SBP, a Merchant must meet the following criteria:
1. Merchant must fulfill the Hong Kong government’s definition of a SME as of 31 May 2018, which is: manufacturing enterprises with fewer than 100 employees and non-manufacturing enterprises with fewer than 50 employees are regarded as SMEs in Hong Kong. (Trade & Industry Department of Hong Kong).
2. Merchant must be an independent/sole retailer with no affiliation to any publicly listed companies or business groups and have fewer than 10 outlets.
3. Merchant must not have accepted any form of Visa or MasterCard payments in the last 6 months.
C. Terms and conditions
The terms and conditions of the SBP outline the transaction limits and other rules that apply to the program.
1. The Special Service Fee is only applicable to Visa and/or Mastercard cards issued in Hong Kong and to the card-presented Merchants (Offline Merchant).
2. The Special Service Fee is subject to transaction limits as follows:
i. Annual sales turnover below HK$3,800,000 (in a calendar year);
ii. Accumulated Visa or Mastercard transaction volume below HK$1,500,000 in the past 365calendar days;
iii. A monthly threshold of Visa transaction volume below HK$380,000; and
iv. All thresholds are applicable to the combined sales turnover across all outlets and sales channels.
3. The Special Service Fee is only applicable to the Merchant who meets all the conditions in Clause 2. Merchant who fails to meet any of the conditions in Clause 2 shall not apply for the SBP (resume to normal Service Fee).
4. The exact calculation method for the Special Service Fee may vary depending on the specific needs of each Merchant. QFPay may offer a percentage-based fee, a flat fee or any other arrangement that is appropriate for the Merchant's business needs.
5. QFPay reserves the right to modify the terms and conditions at any time and to terminate SBP if a Merchant violates any of these terms and conditions.
6. Merchants must comply with all applicable laws, regulations, and industry standards. This includes complying with regulations and guidelines that govern the acceptance of Visa and Mastercard payments, as well as any other relevant regulations that apply to their business.
7. Merchants may be required to provide regular reporting and record-keeping to QFPay, include but not limited to transaction data, sales reports, and other relevant information.
8. The following MCC codes are not applicable to SBP:
i. High Risk MCC as listed: https://www.qfpay.global/high-risk-business; and
ii. The MCC Codes listed below: