Merchant Terms of Service
YOU MAY NOT ACCESS OR USE ANY QOS SERVICES UNLESS YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS AS CONTAINED IN THIS AGREEMENT.
PLEASE READ THESE MERCHANT TERMS OF SERVICE CAREFULLY BEFORE SIGNING UP AS A MERCHANT. If you do not agree to any or all this Agreement DO NOT USE THIS SITE!
This Merchant Service Agreement (“Agreement”) is a legal agreement between QOS (together with its subsidiaries, affiliates, successors, and assigns) And You (hereinafter referred to as the Merchant), as a user in order for You to receive certain payment services and other services offered by QOS and or its subsidiaries and affiliates.
QOS and Merchant are herein referred to collectively as “Parties” and individually as “Party”, whereas:
- A. QOS is an integrated payment and transaction processing company that provides technology integration, advisory products and services, and transaction processing and payment infrastructure to individuals, government and corporate organizations across various sectors and has developed and owns an e-commerce service that authorizes payments for Merchants.
- B. QOS is in collaboration with the acquiring Bank and Mobile Money Operators to provide a Payment service to Merchants.
- C. The Merchant is desirous to partner with QOS to use its Payment Platform to process payment from its customers.
- D.The Parties have agreed to work together in the development and production of certain technical, payment and financing products and have entered into this Agreement for the purpose of documenting their common intention.
Now It Is Hereby Agreed As follows:
In this Agreement, the following definitions apply:
“3D-Secure” means the backup two (2) levels of security which must include delivery of a dynamic code in a card transaction
“Acquiring Bank” means the financial institution/bank institution that processes credit or debit card payments on behalf of a merchant.
“Affiliate“ means, in relation to any Party, any entity in the same group as that Party, including but not limited to a subsidiary or a holding company of that Party and any direct or indirect subsidiaries of such holding company;
“Agreement” means this Merchant Service Agreement and any supplements, appendices, amendments, modifications, extensions and revisions therein;
“API” means Application Program Interface belonging to QOS for the purpose of providing the Services
“Applicable Law(s)” includes but is not limited to all legislation, law, regulation, code, guidelines, rules, policies and directives of any competent regulatory entity in all legal jurisdictions in which QOS operates, including without limitation to all Central Banks requirements with respect to payments, data protection, data privacy and data security, or any successor legislation, law, regulation, code, guidelines, rules, policies and directives amending, consolidating or replacing such Applicable Law, that is applicable to the deployment or operation of the core IT Banking Solution as well as any Services to be provided with respect to this Agreement, and any court decision having the force of law in all applicable legal jurisdictions in which QOS operates;
“Business Day” means any day other than Saturday, Sunday, or any other day on which banking institutions in the Territory are authorized by law or executive action to close;
“Card” means a prepaid virtual and/or physical card issued by Issuing Bank, which is branded with one or more marks or signage of a Payment Scheme
“Cardholder” means any authorised user of a card who uses the card to carry out a card transaction on the Payment Gateway
“Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement and shall be deemed to include any information, process, product, technique, algorithm, program, design, drawing, formula or test data work in process, further development, Merchant , Client , Customer details , transaction details , engineering, manufacturing, marketing, servicing, financing or personnel matter relating to Disclosing Party or any idea or proposal, including Disclosing Party’s present or future plans, products, any client’s information, sales, suppliers, customers, employees, investors, financial and business information or any idea, procedure, process, system, method of operation, concept, principle, or discovery, whether in written, graphic or electronic form and regardless of the medium in which it appears;
“Customers” means any individual or business entity or organisation that uses the Merchant’s platform to accept payments for goods and/or services sold by it;
“Chargebacks” means the reversal of a transaction or request for repayment in respect of a transaction previously settled and/or remitted that comes from the Issuing Bank, Payment Scheme or other financial institution.
The reasons for the Chargebacks include (but are not limited to):
- a. the transaction amount not being authorized;
- b. the cardholder alleging:
- 1. non-participation in the transaction; or
- 2. non-authorization of the use of card; or
- 3. non-receipt of goods and/or services purchased;
“Disclosing Party” means any one of the Parties under this Agreement who discloses Confidential Information to the other Party to this Agreement;
“Fines” means any and all fines, levies, costs, expenses, charges, assessments or imposition of liabilities of any nature which the Payment Schemes or other financial institution require either the Merchant or QOS to pay or which are otherwise directly or indirectly recovered from QOS at any time and which relate to any aspect of this Agreement (including the provision of the Services hereunder).
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Issuing Bank” means a financial institution that issues cards under the authority of the relevant Payment Scheme;
“Merchant” means an end user customer that uses QOS Services in the conduct of its business of selling goods or providing services to the Public;
“Payment Gateway” or “Payment Platform” means the infrastructure and e-commerce service of QOS that authorizes payments for merchants;
“Payment Scheme” means Visa, MasterCard, American Express, Discover® Global Network and any Affiliates thereof or any other card payment network (including any local schemes thereof) and/or such other schemes governing the issue and use of credit, debit, charge, purchase or any other cards or payment methods, as approved and notified by QOS to the Merchant in writing or on the QOS websites from time to time;
“Payment Scheme Rules” means individually and collectively, any and all applicable rules, regulations, standards and operating guidelines issued by any Payment Scheme, as amended and restated from time to time;
“PCI-DSS” means the Payment Card Industry Data Security Standards;
“QOS Terms and Conditions” means collectively the terms and conditions set forth in this Agreement, as may be amended from time to time, including all exhibits, schedules and addendum thereto and the terms and conditions of the Payment Gateway on https://qosic.com/terms-and-conditions
“QOS” means QOS Integrated Center (together with its subsidiaries, affiliates, and assignees)
“Receiving Party” means any person receiving Confidential Information from a Party under this Agreement;
“Refund” means a return of an amount to a Customer or the reversal of any other payment pursuant to a request or instruction from the Merchant to QOS;
“Regulatory Authority” means any regulator or other public body having supervisory or regulatory authority over QOS or the Merchant;
“Services” means usage of the QOS APIs by the Merchant for its payment services;
“Territory” means all the areas/jurisdictions as specified in the Agreement (and/or its Annexures), and any part thereof wherein Company is licensed to accept and/or provide payment services, and other similar services; and
“User Acceptance Test” (UAT) means the last phase of testing of the Payment Gateway integration to ensure functionality according to specification.
2. General Terms
In this Agreement, a reference to:
- ● A document in the “agreed form” is a reference to a document in a form approved and for the purposes of identification signed by or on behalf of the Parties;
- ● A statutory provision includes a reference to
- The statutory provision as modified from time to time (whether before or after the date of this Agreement); and
- Any subordinate legislation made under the statutory provision (whether before or after the date of this Agreement);
QOS hereby grants the Merchant the non-exclusive right to channel its customers through the Payment Gateway.
4. Data Security
Each Party is responsible for ensuring data security on their platform/website and for all data and Confidential information acquired pursuant to this Agreement. Each Party shall be and remain compliant with the Payment Card Industry Data Security Standard (PCI/DSS) requirement to the extent applicable to that Party and prior to such Party accessing any payment cardholder data or credit card information, as such requirements may be amended from time to time.
This Agreement shall deem to commence from the date of completion of Account Opening procedure (“Effective Date”) and shall continue for a period of twelve (12) months (“Initial Term”) unless any Party terminates the Agreement in accordance with this Agreement.Upon expiry of the initial term, this Agreement shall automatically renew for successive one (1) year periods until terminated in accordance with this Agreement.
6. QOS’ Obligations
QOS hereby agrees to:
- 1. work with Acquiring Bank to ensure that settlements of all monies collected by the Merchant is handled in a timely manner in accordance with Applicable Law and Payment Scheme Rules;
- 2. grant to the Merchant and the Merchant hereby accepts from QOS limited, non-exclusive, non-transferable license and right to the QOS API and accompanying integration technical specification in respect of this Agreement subject to the Merchant’s acceptance of the QOS Terms and Conditions;
- 3. work with the Merchant to provide the requisite integration technical specification and APIs in respect of the Payment Gateway subject to the Merchant’s acceptance of QOS Terms and Conditions;
- 4. work with the Merchant to provide fraud protection and compliance support to the Merchant subject to the Merchant’s acceptance of the QOS Terms and Conditions;
- 5. set-up the Merchant on QOS Payment Gateway;
- 6. develop and provide card, mobile money & token processing API's for all QOS Payment Scheme, Mobile Money and tokens in the market of scope;
- 7. provide technology support to the Merchant on a discretionary basis;
- 8. provide post-implementation support to the Merchant and its customers;
- 9. to maintain an open communication channel with the Merchant to discuss future joint product designs for future initiatives that both Parties can benefit from, and to discuss joint press announcements;
- 10. handle settlement of all monies collected by Merchants to Merchant’s settlement account;
- 11. advise Merchant by email on the start date, upon successful completion of the pre-go live UAT, to carry out a controlled end to end test in the live environment with selected internal users only within Merchant’s organization for a period of one or two weeks in order to certify that the entire project implementation is successful and satisfactory with sign off by Merchant if required by Merchant;
- 12. provide adequate technical support for the test duration where applicable during the implementation of the task stated in clause 6.11 above.
7. The Merchant’s Obligations
7.1 The Merchant hereby agrees:
- 1. to offer the QOS infrastructure as method to route supported cards, payment methods & tokens originated transactions through the provided APIs in supported countries as mutually agreed upon;
- 2. to work with QOS to implement the 3D-Secure on its site to certify Customer transactions for card payment;
- 3. to respond to all fraud enquiries not later than one (1) Business Day of receipt of such enquiry,
- 4. to respond to all Chargebacks enquiries with sufficient proof and evidence of value/service delivery within one (1) Business Day of receipt of such enquiry;
- 5. that for any undisputed Chargebacks, the Merchant will be liable and would have to provide an equivalent sum for Chargebacks;
- 6. that for all disputed Chargebacks for which 3D-Secure was used, the Chargebacks shall be subject to arbitration with the Payment Scheme;
- 7. to promptly notify QOS of any security breach, misuse, irregularity, suspected fraudulent transaction or suspicious activities that may be connected with attempts to commit fraud or other illegal activity through the use of Merchant’s site and the corrective action the Merchant has taken;
- 8. to authorise QOS to debit the nominated settlement account for the full value plus other lawful charges in respect of all lawful transaction where the Cardholder is adjudged by the Payment Scheme to be entitled to a refund;
- 9. to ensure adequate fraud protection and compliance to regulatory and Payment Scheme rules and requirements;
- 10. to notify QOS of any change in the Merchant’s registered office address, Merchant’s activities and/or line of business prior to such change.
- 11. to provide a full scope of future plans and use cases of the provided QOS APIs;
- 12. to maintain an open communication with QOS to discuss potential future joint product designs for future initiatives that both parties can benefit from, and to discuss joint press announcements;
- 13. to put in place appropriate security measures to monitor, control and prevent fraud on Merchant website;
- 14. be fully responsible for its employees’ actions while in the Merchant’s employ;
- 15. to ensure that at all times, the following information is displayed on its website;
- 1. Return, Refund and cancellation Policy
- 2. Description of the service (s) being offered for sale
- 3. Delivery policy for the service(s) offered for sale
- 4. Commitment to process orders promptly (stating in clear terms delivery timelines where applicable)
- 5. An undertaking to ensure the security of Cardholders’ information and not to violate the privacy of Cardholders who transact on its site.
- 6. Phone number(s) and e-mail address(es) for customer service contact.
- An undertaking to respond to all customer enquiries/issues within one (1) Business Day;
- 16. to promote the Payment Gateway services to its Customers;
- 17. to utilize the integration specification document and APIs in respect of the Payment Gateway provided by QOS in the prescribed manner;
- 18. fully comply with all applicable payment scheme rules and government regulations in relations to the transaction entered herein.
- 19. ensure that the provided APIs will be used across all of its applicable digital Merchant assets in the prescribed manner;
- 20. to carry out an end to end UAT in the live environment with selected internal users only within the Merchant’s organization and not the general public to certify:
- 21. to close the project, following successful implementation of the UAT, by signing off a project Go-Live document provided by QOS, for this purpose, before exposing Merchant’s project (service) to the general public;
- 22. to provide immediate notice of (i) any unauthorised third-party use of the Services or any third party that may have access to cardholder data; and/or (ii) any event which might lead to such unauthorised use;
- 23. to immediately notify QOS of any act, omission or error which does or may adversely affect the Merchant's ability to perform their obligations under this Agreement or cause loss or damage to QOS (including but not limited to any material change in the nature or extent of the Merchant's business).
- 24. The Merchant shall comply with any additional security, authentication, risk control or other requirements imposed by QOS, Mobile Money Operator, Financial Institution or a Payment Scheme, including but not limited to where that Merchant is, in the opinion of QOS and / or the Payment Scheme, engaged in high risk activities.
- 25. to comply with Applicable law and any relevant Payment Scheme Rules to which the Merchant is subject. The Merchant shall not act in contravention of or cause QOS to act in contravention of any Payment Scheme Rules to which QOS is subject.
- 26. Maintain a 10% rolling reserve from daily settlement due to the Merchant for a period of 180 days as provided in Clause 14 below.
7.2 In order to ensure continued compliance with the requirements of the BCEAO, the Merchant understands and accepts that QOS provides its Services subject to the written approvals, directives, notices or authorisations as may be issued by the BCEAO from time to time and the Payment Scheme Rules. The Merchant further accepts that QOS may make any such changes to the Services or this Agreement as are strictly necessary to ensure compliance with the BCEAO and the Payment Scheme Rules and the continuous provision of the Services to the Merchant.
7.3 The Merchant acknowledges that the Cards created on the QOS Platform, if applicable, are the property of QOS, and will be subject to cancellation at any time by QOS or the Issuing Bank, as required by Applicable Law, or, on a case-by-case basis, where QOS and/or the Issuing Bank believes that the Card is being used for fraudulent or illegal purposes provided that QOS shall immediately notify the Merchant of such cancellation.
7.4 The Merchant agrees that it will be responsible for and liable to QOS and Issuing Bank for all reasonable expenses associated with and any losses from over limit processing or reasonable expenses incurred by QOS or Issuing Bank in seeking fraud or unauthorized transaction recovery under Applicable Law that was a result of the Merchant’s action or inaction including actions of the Merchant’s employees.
8. Chargebacks And Refunds
- 1. If applicable, the Merchant acknowledges and agrees that in certain circumstances the Issuing Bank, Payment Scheme or other financial institutions may (i) refuse to settle a transaction or (ii) impose Chargebacks on QOS.
- 2. The Merchant agrees that it may be required to reimburse QOS for Chargebacks where the Merchant has accepted settlement in respect of the relevant transaction. Where applicable, the Merchant must respond to Cardholder disputes and handle Chargebacks in accordance with Payment Scheme Rules.
- 3. The Merchant agrees that QOS shall have the right to send non-settled transactions received from the Merchant Customers to the Issuing Bank/authorities concerned for the purpose of checking and in case of objection and/or opposition on the executed transactions by the Issuing Bank or the authorities concerned for any reason, QOS shall not be bound to pay the Merchant the transaction amount during the period contained in this agreement.
- 4. All Chargebacks shall correspond to the whole or part of the settlement value of the original transaction.
- 5. Where Chargebacks occur, QOS shall immediately be entitled to debit the Merchant’s position or make a reversal from the Merchant’s bank account and/or make a deduction from any remittance and /or invoice the Merchant to recover:
- 1. the total of the Chargeback amount
- 2. any fees incurred
- 6. A Chargeback represents an immediate liability from the Merchant to QOS and where the full amount of any Chargebacks and/or any Chargeback Costs is not debited by QOS from the Merchant bank account or deducted from any remittance or invoiced as referred to in the previous clause, then QOS shall be entitled to otherwise recover from the Merchant by any means, the full amount of such Chargeback or Chargeback Costs (or the balance thereof, as the case may be).
- 7. QOS shall not be obliged to investigate the validity of any Chargeback by any Issuing Bank, Payment Scheme or other financial institution, whose decision shall be final and binding in respect of any Chargebacks.
- 8. As Chargebacks may arise a considerable period after the date of the relevant transaction, QOS shall remain entitled to recover Chargebacks and Chargeback Costs from the Merchant in respect of all Chargebacks, even after the termination of the contractual relationship between the Merchant and QOS.
- 9. QOS may immediately terminate this Agreement and the Services provided hereunder if QOS in its sole opinion considers that the total value of Refunds and/or Chargebacks is unreasonable.
- 10. The Merchant agrees and confirms that it shall remain solely liable after the termination of the Agreement for all Chargebacks, Refunds, penalties, loss, damages or cost incurred by QOS, Acquiring Bank, and/or Customers and for all claims and proceedings arising against QOS with respect to the Agreement.
9. Set Off
- 1. QOS may, without notice, set off any debts or liabilities due from the Merchant to QOS under this Agreement against any debts or liabilities owed by QOS to the Merchant, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, QOS may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
- 2. QOS is entitled to defer any settlement or any other sum due to the Merchant to the extent that QOS considers necessary or appropriate to protect their ability to recover the Fees and/or the sums or any other liability (actual or anticipated) of the Merchant in connection with this Agreement.
- 3. If QOS has reasonable suspicion that a transaction may be fraudulent or involve other criminal activity, QOS may suspend the processing of that transaction and any connected, transaction, or withhold settlement until the satisfactory completion of any investigation. The Merchant shall not be entitled to any interest or other compensation whatsoever in respect of suspension or delay in receiving Payment.
- 4. The exercise by QOS of any of its rights under this clause shall be without prejudice to any other rights or remedies (including but not limited to set-off) to which QOS is otherwise entitled (by operation of law, contract, or otherwise).
- 1. Fees under this Agreement is structured as shown in https://qosic.com/pricing and may be updated from time to time
- 2. Direct processors fees from Payment Scheme are already contained in the fees contained in clause 10.1 above
- 3. QOS may reduce/waive its transaction fees from time to time without recourse to the Merchant but shall notify the Merchant of such increase/reduction/waiver immediately upon its implementation.
- 4. QOS is entitled to recover and withhold:
- 1. any Refunds;
- 2. any Chargebacks; and
- 3. any Fines Visa, MasterCard, American Express, Discover® Global Network and any Affiliates thereof or any other card payment network.
- 5. The Merchant may markup fees to its Customers without recourse to QOS.
- 6. The Merchant hereby gives QOS full permission and authorization to receive all settlements and collections on its behalf, from the Acquiring Bank, and to liaise with the Acquiring Bank, in order to make all due settlements to it, and on its behalf, through the QOS platform.
- 1. The Merchant warrants that it has never had an agreement with a payment scheme provider which was terminated upon request and/or demand by the payment scheme provider or any regulatory authority.
- 2. The Merchant warrants that it shall not submit any transaction that the Merchant knows is illegal, fraudulent, or restricted for authorization, or not authorized by the cardholder.
- 3. The Merchant warrants it will conduct appropriate due diligence on all Customers.
- 4. The Merchant warrants that it shall fully cooperate where any forensic investigation is being conducted on the Merchant until such time the investigation is completed.
- 5. The Merchant warrants it will use the Services in good faith, in accordance with the terms of this Agreement and in accordance with all Applicable Law and Payment Scheme Rules. In particular, the Merchant will not use the Services in a manner that that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations.
- 6. The Merchant warrants that the Merchant has not been subject to the following:
- 1. Criminal conviction (except minor traffic offenses and other petty offenses) in Benin or in any other foreign country;
- 2. Federal or state tax lien, or any foreign tax lien;
- 4. Administrative or enforcement proceedings commenced by the Securities and Exchange Commission, any Regulatory Authority, in Benin, or in any other country; or
- 5. Restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant.
- 7. The Parties warrants that they are duly registered and licensed (where applicable), and have the full capacity, regulatory approvals, and corporate authorisation to enter into this Agreement and discharge the obligations and responsibilities created herein.
- 8. The Parties further warrant that no element of this transaction constitutes a breach of any existing law, regulation, patent, copyright, or other intellectual property in its country or countries of domicile and operation.
- 9. The Parties warrant that in the case of any third-party software used in respect of this Agreement, that they have the required licence and the right to grant a sub-licence to use such third-party software.
- 10. Each Party warrants to the other that this Agreement constitutes a legal, valid, and binding obligation, enforceable against it in accordance with the terms and obligations therein and no provision of this Agreement is in conflict with any of the Party’s obligations under its constitutional documents, Applicable Law or any other document, charter or agreement to which the Party is subject,
- 11. The Parties shall keep each other indemnified against all actions, claims, proceedings and all legal cost or other expenses arising out of any breach of the above warranties or out of any claim by a third party based on any facts which if substantiated would constitute such a breach or a breach of other relevant legal or contractual duty.
- 12. QOS neither warrants that the use of the Payment Gateway or the operation thereof will be uninterrupted nor error free, however, QOS warrants that it shall use its best endeavours to ensure that the Payment Gateway functions optimally at all times and within generally accepted industry standards during the term of this Agreement.
- 13. Except as set forth in this clause 11, QOS makes no express or implied representations or warranties with respect to the Payment Gateway and related services or their condition, merchantability, fitness for any particular purpose or use by the Merchant or the Merchant’s customers.
- 14. Disclaimer. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MARKETABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES.
12.1 Either Party shall indemnify and hold the other Party, its Affiliates, employees and agents harmless from and against any damage, loss, expense, claims or liability that Party may incur:
- 1. With respect to any negligent act or omission by, or wilful misconduct of, the Party’s employees or agents to the extent however that such negligent act can be situated in the normal course of employment or appointment;
- 2. The violation of any applicable law, statute or regulation by the Parties or their personnel;
- 3. In connection with any third party claims, actions, demands and/or losses to the extent that such losses result from any breach of this Agreement by such indemnifying Party.
12.2 The Merchant shall indemnify and hold QOS harmless from and against any damage, loss or liability that QOS may incur as a result of:
- 1. Merchant wilfully or carelessly exposing the process/product/service to the general public during the process of carrying out tests in the controlled Live environment as stated in clauses 7.1.18 and 7.1.19 above.
- 2. Negligent or wilful misconduct of the Merchant and/or its employees, Affiliates, employees and agents.
- 4. Any warranty, condition, representation, indemnity or guarantee granted by the Merchant with respect to the Payment Gateway with respect to the limited warranties specified in clause 11;
- 5. Any omission or inaccuracy in the Merchant’s advertisements or promotional materials that relate to the Payment Gateway,
- 6. Any modification of or addition to the Payment Gateway not provided or approved by QOS or;
- 7. The Merchant’s failure to comply with the terms and conditions of this Agreement or any part thereof.
- 8. This section will not be construed to limit or exclude any other claims or remedies to which QOS may be entitled hereunder or in law or equity.
13. Fraudulent Transactions
1. Fraudulent transactions shall include but not be limited to:
- 1. Any purchase of goods and services and/or transaction arising from the use of a card by a person other than the authorized cardholder.
- 2. Use of a card that is not authorised in terms of the rules governing the issuance and use of cards.
2. In the event that fraudulent transactions account for more than 0.10% of the Merchant’s sales turnover in any one (1) month, QOS may, in addition to any other remedy available to it, be entitled to unilaterally terminate this Agreement forthwith and/or request the Merchant to delist the affected customer from the use of the platform and terminate the Merchant Agreement with the affected Customer.
3. Merchant agrees that it will always be responsible for the actions of;
- 1. the Merchant’s customers; and
- 2. The Merchant’s employees
- 3. including fraudulent acts or omission not traceable to the contributory negligence of QOS.
14. Rolling Reserve
- 1. Where applicable, QOS shall maintain a 180-day rolling reserve of funds to be settled to the Merchant upon accumulation of the Risk Deposit Amount.
- 2. The rolling reserve shall be 10% of all the transactions from the Merchant’s Customers during the calendar month.
- 3. QOS shall be entitled to use the 180-day rolling reserve to cover any Card Chargebacks or Refunds or any fees/fines imposed on the QOS due to the breach of the Agreement by the Merchant.
- 4. The 10% rolling reserve shall be released on day 181 to the Merchant’s bank account.
- 5. In the event that the Chargebacks and the Refunds are higher than the 10% rolling reserve. QOS is entitled to set-off the amounts from the Merchant transaction until the sum of fine/fee is covered as stated in Clause 13 above.
- 6. QOS may require that any security provided be supplemented or replaced at any time.
- 7. At the time of Termination, QOS may retain any such amount from the security (if any) and settlement payable to the Merchant as may be determined by QOS to cover Chargeback risk, Refund risk or any potential loss, damages, penalties, cost that may be incurred by QOS for a period of one hundred and eighty (180) Business days. In the event that such retained amount is not sufficient to cover all outstanding amounts of the Merchant post termination, the Merchant shall ensure that it pays QOS all pending amounts within ten (10) Business Days of receiving the demand notice and shall at all times keep QOS indemnified in this respect.
- 1. Where applicable, QOS reserves the right to require that the Merchant provides (or procures the provision of security in such form as to be agreed by the Parties to secure the performance of the Merchant's actual, contingent or potential obligations under this Agreement or otherwise in connection with the Services. Such security may take the form of a deposit, a rolling reserve, a guarantee or indemnity. QOS reserves the right to unilaterally call for an increase to the level of security held.
- 2. QOS may require that any security provided be supplemented or replaced at any time.
- 3. At the time of termination, QOS may retain such amount from the security (if any) and settlement payable to the Merchant as may be determined by QOS to cover Chargeback risk, Refund risk or any potential loss, damages, penalties, cost that may be incurred by QOS for a period of one hundred and eighty days (180) Business Days. In the event that such retained amount is not sufficient to cover all outstanding amounts of the Merchant post termination, the Merchant shall ensure that it pays QOS all pending amounts within ten (10) Business Days of receiving the demand notice and shall at all times keep QOS indemnified in this respect.
16. Limitation Of Liability
1. The liability of QOS to the Merchant, whether in contract, negligence, and other tort, by way of indemnity or otherwise arising out of or in connection with this Agreement shall be subject to the financial limits set out below:
- 1. In no event shall QOS be liable to the Merchant in excess of any amount that has accrued to QOS from transactions emanating by virtue of this Agreement, in the month immediately preceding the date the first such claim arises
- 2. No liability shall be raised against QOS more than two (2) years after the accrual of the cause of such liability, therefore. It is further agreed that the limitations on liability, expressed herein, shall inure to the benefit of and apply to all parents (both direct and indirect), subsidiaries and Affiliates of QOS.
- 3.QOS will not be liable for the actions or inactions of any third party not acting on the instructions of QOS; neither will QOS be liable for the actions or inactions not directly traceable to it.
1 Either Party may terminate this Agreement forthwith by giving’ notice in writing to the other Party if:
- 1. the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
- 2. the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
2. This Agreement may also be terminated forthwith by any of the Parties on giving written notice to the other, if the other Party is in material breach of the terms of this Agreement and has failed to rectify such breach (in the case of a breach capable of being remedied) within ten (10) Business Days of receiving a written notice requiring it to do so.
3. QOS may terminate this Agreement and delist the Merchant where the Merchant is identified as a source of fraudulent activity or causes damage to QOS’s brand or the Acquiring Bank and Payment Schemes or upon instruction from the Acquiring Bank and Payment Schemes whether financial or otherwise.
4. Either Party may terminate this Agreement at any time on giving one (1) month’s written notice to the other Party.
5. On Termination, the Parties shall be discharged from any liability for further performance of its obligations under this Agreement and shall entitle either Party to be paid the accrued sum for any successful transaction prior to such termination.
6. Any termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of any of the Parties nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
7. Upon termination of this Agreement the Merchant’s right to use the Payment Gateway shall automatically be revoked and QOS shall retain the merchant records for a period of five (5) years after such termination.
- 1. In order to implement this Agreement, Both Parties may receive and have access to certain information belonging to the other Party which the other Party may designate as Confidential Information, provided, the Parties recognize that they will not have access to, or share, non-public personal information regarding consumers under this Agreement. Both Parties agree that all Confidential Information is and shall remain the property of the Party providing the information and the Party receiving or gaining access to the information shall use all reasonable and prudent means to safeguard such Confidential Information, including all means required by law. Furthermore, neither Party shall copy, publish, disclose to others, or use such Confidential Information for any purpose other than the fulfilment of its obligations under this Agreement or where required by law.
- 2. Each of the Parties on behalf of itself and its employees, officers, directors, Affiliates, and agents, hereby agrees that Confidential Information made available to it will not be disclosed or made available to any third party, agent or employee for any reason whatsoever, other than with respect to: (i) its employees on a “need to know” basis, (ii) Affiliates on a “need to know” basis, provided that they are subject to a confidentiality agreement which shall be no less restrictive than the provisions of this Section 17; and (iii) as required by Applicable Law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the termination of this Agreement, provided that prior to any disclosure of any party’s Confidential Information as required by law, the party subject to the requirement shall (iv) notify the other parties of all, if any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated and (v) cooperate with the other parties’ reasonable, lawful efforts to resist, limit, or delay disclosure.
- 3. Upon Termination of this Agreement, or at any time upon the request of the other party, each party shall return all Confidential Information in the possession of such Party or in the possession of a third party (over which such party has or may exercise control).
- 4. In the event of any breach of the obligations under this Section 18, each Party acknowledges that the other Party may have no adequate remedy at law, in addition to such other remedies as may be available to the other Party, the other Party may obtain injunctive relief.
- 5. This Section shall survive any termination or expiration of this Agreement.
19. Force Majeure
- 1. If any of the Parties hereto is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control (including but not limited to an Act of God, Natural Disaster, or Civil Disorder) the Party unable to fulfil its obligations shall immediately give notice in writing of this to the other Party and shall do everything in its power, including but not limited to accepting assistance from third parties or the other Party, to resume full performance.
- 2. If the period of incapacity exceeds two (2) months, then this Agreement shall automatically terminate unless Parties expressly agree otherwise in writing
20. Relationship Between Parties
- 1. The relationship between the Parties hereto shall be one of collaboration for the single purpose of the business relationship herein created.
- 2. This Agreement shall not in any way constitute a partnership or joint venture between the Parties or constitute either Party an agent of the other.
- 3. This Agreement is not intended to confer on any person other than QOS and the Merchant, any express or implied benefit or burden.
21. Intellectual Property
- 1. Nothing set forth in this Agreement shall constitute a transfer or assignment by one Party to another Party of any Intellectual Property Rights owned or otherwise controlled by such Party, and each Party hereby retains all of its rights, title and interest in such Intellectual Property Rights.
- 2. All Intellectual Property Rights in or related to the Payment gateway are and will remain the exclusive property of QOS, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Payment gateway is used or licensed. The Merchant shall not take any action that jeopardizes QOS' proprietary rights or acquire any right in the Payment gateway, or the Confidential Information, as defined herein. Unless otherwise agreed on a case-by-case basis, QOS will own all rights in any copy, translation, modification, adaptation or derivation of the Payment gateway or other items of Confidential Information, including any improvement or development thereof.
22. No Assignment
- 1. The, rights benefits or obligations under this Agreement may not be assigned or otherwise transferred in whole or in part without the prior written consent of all the Parties but shall be binding upon and inure to the benefit of each of the Parties and, where so permitted, their assigns or other transferees.
- 2. QOS may sub-contract or delegate the performance of its obligations under this Agreement to third parties including any of its Affiliates; however, the Merchant shall remain responsible for the performance of its duties under this Agreement.
This Agreement may not be modified except by an instrument in writing signed by duly authorized representatives of each of the Parties.
The respective rights of the Parties (whether arising under this Agreement or under the applicable law) shall not be capable of being waived or varied otherwise than by an express waiver or variation in writing; and in particular any failure to exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right; any defective or partial exercise of any of such right shall not preclude any other or further exercise of that or any other such right; and no act or course of conduct or negotiation on the part of either Party shall preclude them from exercising any such right or constitute a suspension or variation of such right.
26. Further Assurances
27. Whole Agreement
Save for QOS Terms and Conditions and Payment Scheme Rules of this Agreement, this Agreement contains the whole agreement between the Parties with respect to the subject matter hereof and supersedes any prior written or oral agreement between them in relation to its subject matter and the Parties confirm that they have not entered into this Agreement upon the basis of any representation that are not expressly incorporated herein and the QOS Terms and Conditions.
28. Disputes And Dispute Resolution
- 1. QOS shall not be involved in any disputes that may arise between the Merchant and any of its Customers, unless such dispute specifically relates to transaction settlement.
- 2. In the event of a dispute between Parties with respect to any issue arising out of or relating to this Agreement in any manner, including but not limited to the breach thereof, resolution of which cannot be resolved amicably by the Parties through negotiation within thirty (30) days shall be resolved definitively in accordance with the arbitration rules of the OHADA Joint Court of Justice and Arbitration before a single arbitrator in accordance with the Arbitration and Conciliation rule.
- 3. The decision of the arbitrator shall be final and binding on the Parties and Parties agree to be bound by it. Such decision shall be rendered within thirty (30) days of the closing of the hearing record.
- 4. The cost of arbitration shall be borne equally by the Parties.
- 5. The Arbitral award rendered by the arbitrator shall be entered in any court of competent jurisdiction as judgment. No award of punitive damages by the arbitrator may be enforced.
29. Further Assurances
This Agreement shall be governed by the Laws of the Republic of Benin.
1. Any notice required or permitted by this Agreement to be given to either Party by the other shall be given by personal delivery to such Party or by registered or certified mail, electronic mail, postage prepaid, return receipt requested, and addressed to:
- QOS INTEGRATED CENTER SARL
- Address: Carre 557, KPINGLA Lisette, Sikecodji, Cotonou, Republic of Benin
- Email: firstname.lastname@example.org
- Attention: Managing Director
- 1. Each Party hereby undertakes that, at the date of this Agreement, itself, its directors, officers, employees or Affiliates have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with this Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so
- 2. Each Party shall comply with all applicable anti-bribery and anti-corruption Laws in all legal jurisdiction in which QOS operates (including the Groupe Intergouvernemental d’Action Contre le Blanchiment d’Argent laws and the Foreign Corrupt Practice Act of the United States of America and the Bribery Act 2010 of the United Kingdom) and all applicable anti-bribery and anti-corruption regulations and codes of practice.
- 3. The Merchant shall ensure that this clause 31 is observed in all relationship with its customers.
Where you negotiate a Merchant Services Agreement before or after accepting the terms of this E-Agreement, the executed Agreement will take precedence over this E-Agreement.