Merchant’s Terms and Conditions
(QR Code Acquiring Services)
THIS SERVICE AGREEMENT is made the [DATE] day of [Month] [Year].
| BETWEEN: | QFPay Haojin FinTech Limited iFlare Hong Kong Limited, companies incorporated in Hong Kong whose registered office is situated at Unit A, 27/F, West Gate Tower, 7 Wing Hong Street, Lai Chi Kok, Kowloon, Hong Kong (the “Companies”); |
| AND: | [Company name], a company incorporated in [Place] whose registered office is situated at [Address] (the “Merchant”). |
| Each a “Party” and collectively the “Parties”. |
WHERERAS:
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
NOW IT IS HEREBY ARGREED as follows:
1. DEFINITION(S)
Unless otherwise specific, the following terms herein shall be defined as follows:
1.1. Affiliate means the type of inter-companies relationship in which one companies own less than a majority stake in the other companies’ 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” rainstorm 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 Companies’ 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 Companies 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 number of business day as listed in the Application Form;
1.14. Electronic Payment Platform means a platform operated by the Companies which it helps the Companies to provide payment solutions services to the merchants;
1.15. Payment Services means the services provided by the Companies to the merchants in a variety of payment methods;
1.16. Service Fee means the service fees and other charges related to the 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 payable 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 Companies are 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 Companies, the adjusted applicable rate shall apply.
2.3. The Companies reserve the right to adjust the Service Fee to the Merchants.
3. SECURITY
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 Companies.
3.2.2. Upon receipt of formal notification of leak from the Merchant, the Companies are 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 Companies 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 Companies 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 OF THE MERCHANT
4.1. The Merchant shall honestly and truthfully provide information on the qualifications of the Merchant to the Companies, 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 Companies are 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 Companies 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 Companies.
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. The Company serves the right to investigate and validate any transactions.
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 take full responsibility to ensure that the consignee is the card holder or the person authorized to pick up and shall keep all the transactions records, Customer /card holder verification and services provided and/or shipping and/or delivery records (for example, verification of card holder/ Customer identification for the purchase or pick-up when the Merchant considers this is reasonable, a valid shipping and delivery note with receiver sign-off record, a CCTV records for an in-shop purchasing, and etc) Except as otherwise provided by laws,
4.8. 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.
4.9. 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.
4.10. 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 Companies in advance. The Companies are 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.
4.11. 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:
4.11.1. Acquiring Device position should be stable, safe and easy to operate;
4.11.2. 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
4.11.3. 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 Companies shall not be held responsible for the result.
4.12. The Merchant use the Acquiring Device within the scope of the Agreement. Without the Companies’ written consent, the Merchant shall not transfer, rent, lend, mortgage, pledge, lien or in 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 Companies.
4.13. The Merchant shall paste, display in a prominent position, hang and maintain relevant logo provided by the Companies 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.
4.14. 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.
4.15. The Merchant will not use the Payment Services beyond the Merchant’s business scope registered with the Companies.
4.16. The Merchant shall not reprint, copy, cut out or tamper with the contents on the website of the Companies or produce derivative products in relation to such contents without the written authorization from the Companies. Without the prior written authorization from the Companies, the Merchant shall not produce derivative products in relation to such contents in the Electronic Payment Platform and/or the Merchant APP.
4.17. 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 Companies 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.
4.18. 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 Companies’ reasonable due diligence of the Companies’ 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.
4.19. 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 OF THE COMPANIES
5.1. The Companies are responsible for the development, operation and management of Payment Services.
5.2. Except as otherwise provided by laws, the Companies are entitled to add, delete or otherwise change any of terms and conditions of the Agreement from time to time without prior written notice. Such variations may be notified by reference to materials available on the Companies’ website.
5.3. The Companies provide the Merchant with the Payment Services only. The Merchant shall handle any disputes between Merchant and its Customer and/or third party and the Companies shall not be held responsible for such dispute.
5.4. The Companies have 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 Companies as practical as possible. The Companies shall retain its absolute discretion to immediately terminate this Agreement if such change induce the Companies 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.
5.5. The Companies shall have rights to review the business type of the Merchant. The Companies 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.
5.6. 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).
5.7. The Merchant who uses the Payment Services shall be deemed as authorizing the Companies 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 Companies shall have rights to apply the above-mentioned information or data to the business development and products improvement.
5.8. The Companies 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.
5.9. The Companies shall comply with Applicable Laws on AML and CFT and reasonable due diligence Companies’ AML and/or CFT policies and procedures.
5.10. The Companies 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 Companies shall, after deducting all Service Fee payable to the Companies 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 Companies by written notice and provide any information required by the Companies 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 Companies 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 Companies 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 Companies’ bank to the Merchant’s bank shall be borne by the Companies, and all other charges such as the costs of receiving banks shall be borne by the Merchant.
6.8. The Companies reserve the right to suspend settlement to you. Examples of situations where the Companies may do so are: (i) when the Companies are 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 Companies suspect or become aware of suspicious activity; or (iv) where the Companies are required by Laws or court order. The Companies have the right to withhold settlement upon completion of inspection. The Companies 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. REFUND
7.1. The Merchant shall ensure that any refund is only effectuated through the system interface provided by the Companies, 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 Companies for refund, the Merchant shall have sufficient deposit for the refund in its account. The Companies 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 Companies 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 Companies shall not charge for handling fee for transaction. However, if the designated bank of the Merchant requires the Companies to pay for the relevant fee, the Companies may pay such fee in advance, but it shall solely be borne by the Merchant by way of deduction from its unsettled fund.
8. CHARGEBACK
8.1. For any inquiry notice and request regarding transaction from the Companies, the Merchant shall reply and provide the original receipt and relevant transaction record to the Companies via e-mail within three (3) working days after receiving such notice from the Companies.
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 settlement without any prior notice.
9. CONFIDENTIALITY
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 Clause 9 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 to do 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. LIABILITY
10.1. Any Party in breach of contractual obligations prescribed in this Agreement constitutes a breach of contract.
10.2. The Companies 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 Companies;
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 Companies;
10.2.8. Breaches this Agreement, or engages in illegal business by using services provided by the Companies; or
10.2.9. Involves in risk events or abnormal transactions in the Companies’ 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 Companies’ 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 Companies 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. RIGHTS OF 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. MISCELLANEOUS
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, 2, 3.
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 be given by courier service, registered mail or email. All notices and communications shall be sent to the addresses or emails set forth below:
| The Companies: QFPay Haojin Fintech Limited iFlare Hong Kong Limited Address: Unit A, 27/F, West Gate Tower, 7 Wing Hong Street, Lai Chi Kok, Kowloon, H.K. Telephone: +852 2613 9299 Facsimile: +852 2771 5195 Email: hk@qfpay.com Attention: compliance team |
| The Merchant: [Pls Insert] Address: [Pls Insert] Telephone: [Pls Insert] Facsimile:Email: [Pls Insert] Attention: [Pls Insert] |
This Agreement has been executed the day and year first above written.
| For and on behalf of | For and on behalf of |
| QFPay Haojin Fintech Limited iFlare Hong Kong Limited | [Please insert] |
| ________________________ | ________________________ |
| Authorized Signature Chop | Authorized Signature Chop |
| Name: | Name: |
| Title: | Title: |
| Date: | Date: |
Appendix 1 – Application Form
Appendix 1 shall be referred to the Application Form. The Merchant shall fill in company general information, 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 -Terms and Conditions
1. Covered Area
Services covering the jurisdiction of the HKSAR, the Companies have the right to decide on individual cases whether to provide services.
2. General
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 Companies’ 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 Companies need further information, the Merchant has to cooperate to provide relevant documents or information pursuant to the request of the Companies.
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 Companies’ request. If the Merchant fails to comply with, it will be regarded as a material breach of this Agreement.
4. Payment
4.1 Payment of Service Fee
The Merchant agrees that the Companies 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.
4.2 Over/Under-Charges
If the Companies charge the Merchant more than the Service Fee set forth in this Agreement, the Companies will return the additional Service Fee charged to the Merchant as soon as practicable. If the Companies charge the Merchant less than the Service Fee set forth in this Agreement, then the Merchant shall pay the outstanding Service Fee to the Companies immediately upon the Companies’ 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 and / or in the Application Form.
5.2 Transaction List
(A) For the Merchant who uses the Merchant QR Code solution, the Companies will provide an electronic payment collection application, which memory has six (6) months of transaction record; or
(B) By the end of business day, the Companies will make available for download by the Merchant from data base. The Companies 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 Companies’ determination of the Settlement Fund and the Net Settlement Amount, and in the absence of manifest error or valid dispute by the Merchant shall be final and binding on the Merchant in relation to such amounts.
5.3 Fund Transfer
Subject to the Companies exercising its rights to withhold, deduct or set off in accordance with this Agreement, the Companies 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 Companies may deduct in accordance with its rights to withhold, deduct or set off under this Agreement; and
5.3.2 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 Companies 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 Companies will be responsible for bank charges (if any) imposed by banks which the Companies initiate 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 Companies 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 Companies 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 Companies.
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 Companies to assist with such enquiry. For the settlement inquiry within thirty (30) days of the occurrence, the Companies 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. For settlement inquiry over thirty (30) days of the occurrence, the Companies may not be able to assist with such inquiry.
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 Companies determine in its sole discretion that certain features of the Payment Services may be subject to high risk of unauthorized payment or fraudulent transaction, the Companies 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 Companies’ request.
8.2 Reimbursement
If the Companies do not receive the transaction evidence, or deem the transaction evidence to be inadequate, the Merchant shall promptly pay the Companies the same amount as the problematic transaction settled by the Companies at that time in the designated bank account of the Merchant.
8.3 Reimbursement Obligation
After the Merchant provides the transaction evidence, the Companies will try to assess the evidence to determine the effectiveness of the reimbursement. The Merchant must expressly agree to indemnify and hold the Companies harmless for the amount to be agreed between the Merchant and the Companies 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 any way 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 Products and Services (Refer to Appendix 3)
9.3.1 The Merchant fully acknowledges that the Companies 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 Companies 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 Appendix 3, 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 Companies 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 Companies shall be entitled to review or otherwise access such records. Subject to any legal restrictions under Applicable Laws, the Merchant will procure that the Companies 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 Companies’ request. Subject to any restriction under Applicable Laws, the Companies will advise the Merchant of the names of such the Companies 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 Companies shall be entitled, at its sole discretion, to set off, withhold settlement without any prior notice. The circumstances under which the Companies 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 Companies and / or 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 Companies and / or Electronic Payment Platform reasonably believe that there has been a material deterioration in the financial condition of the Merchant;
(D) if the Companies and / or Electronic Payment Platform reasonably believe that any transaction is a Prohibited Transaction and believe that the Merchant may participate into any fraud activities or intend to enter any illegal, fraud and fake transactions and activities;
(E) if the Companies and / or Electronic Payment Platform reasonably believe that the Merchant mayprovide or intend to provide any misleading or forged documents and information;
(F) if the Merchant fails to pay the Service Fee of Payment Services to the Companies as stipulated in this Agreement; and
(G) any loss to the Electronic Payment User or the Companies 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 warranties in entering into this Agreement.
10.1 Authorization.
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.
10.2 Validity.
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 (ii) violate any Applicable Laws.
10.4 Litigation.
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.
Appendix 3 – Prohibited Products and Services
I. Prohibited List (HK Wallet)
| 1. | Pornography 色情 |
| 2. | Illegal drugs毒品 |
| 3. | Narcotic-taking tools吸毒工具 |
| 4. | Weapons, including accessories, replica weapons, ammunitions and explosives軍火武器/槍械及配件，含模擬槍、爆炸物 |
| 5. | Military or police equipment軍用、警用物品 |
| 6. | Poisonous articles and hazardous chemicals劇毒物品和危險化學品 |
| 7. | Hacking, malware駭客攻擊、惡意軟體 |
| 8. | Certificate issuing and stamp carving that violate the law違法辦證刻章 |
| 9. | Counterfeit currency假幣 |
| 10. | Sale or purchase of bank account or bank card in contravention with the Laws買賣銀行帳戶（銀行卡） |
| 11. | Archaeological and cultural relics考古文物 |
| 12. | Forged and fake products假冒產品 |
| 13. | Human organs人體器官 |
| 14. | Surrogacy services代孕服務 |
| 15. | Protected species保護動植物 |
| 16. | Smuggled goods走私物品 |
| 17. | Any animals, plants or products which contain dangerous germs, pests or any other living creature帶有危險性病菌，害蟲及其他有害生物的動物、植物及其產品 |
| 18. | Any products, medicine or any other article originates from epidemic area of infectious disease which causes threat to health of human beings or animals有礙人畜健康的，來自疫區其他能傳播疾病的製品，藥品或其他物品 |
| 19. | Any other goods or services that violate the law其他違法產品或服務 |
II. Prohibited List (CN Wallet)
| 1 | Illegal political products and publications非法政治產品及出版物 |
| 2 | Illegal political program channels非法政治節目台 |
| 3 | State secret documents and information國家機密檔資料等 |
| 4 | Pornographic and vulgar audio-visual products, channels, and publications黃色低俗音像產品/出版物 |
| 5 | Pornographic and vulgar erotic services黃色低俗色情服務 |
| 6 | Gambling賭博 |
| 7 | Gambling devices and accessories賭博設備及配件 |
| 8 | Lottery抽獎 |
| 9 | Narcotics and related accessories毒品及相關配件 |
| 10 | Weapons of all types (including daggers, firearms and accessories, replica weapons, ammunitions and explosives)軍火武器/槍械及配件，含模擬槍、爆炸物 |
| 11 | Military or police equipment軍用或警用物品 |
| 12 | Illegally obtained proceeds or properties as result of crime犯罪物品 |
| 13 | Poisonous or hazardous chemicals劇毒和危險化學品 |
| 14 | Batons and electric batons甩棍、電棍、電擊棍等其他物品 |
| 15 | Lock picking tools and accessories開鎖工具及相關配件 |
| 16 | Anesthetic, psychotropic or prescription medicine; illegal unregistered medicine麻醉藥品、精神類藥品、處方藥、無批號藥品 |
| 17 | Fetal gender determination胎兒性別鑒定 |
| 18 | Aphrodisiac成人藥品 |
| 19 | Online sale of medical services, including medical consulting, hypnotherapy, plastic surgery線上醫療服務，包括醫療諮詢、催眠、整容整形 |
| 20 | Hacking services or accessories駭客攻擊服務或相關配件 |
| 21 | Malwares惡意軟體 |
| 22 | Illegal publication of certificates or carving of stamps非法辦證刻章 |
| 23 | Crowd funding眾籌 |
| 24 | Video chatting services視頻聊天服務 |
| 25 | All religious websites, publication or accessories所有宗教網站, 刊物或相關配件 |
| 26 | Online cemeteries and ancestor worshipping網上公墓、網上祭祀等服務 |
| 27 | Sales of personal information (e.g. identity card information)販賣個人資料 (例如: 身份證資訊) |
| 28 | Espionage equipment and accessories間諜設備及配件 |
| 29 | Services or products that infringe on personal privacy (e.g. online activity monitoring)侵犯個人隱私的服務或產品（例如: 在線活動監控） |
| 30 | Pyramid schemes and multi-level marketing傳銷及多層次營銷 |
| 31 | Gold investment黃金投資 |
| 32 | Cashback from Alipay account通過支付寶賬戶返現 |
| 33 | Counterfeit currency假幣 |
| 34 | Illegal sale of financial information (e.g. bank accounts, bank cards)非法出售財務信息（例如: 銀行帳戶，銀行卡） |
| 35 | Stock and securities股票及證券 |
| 36 | Mutual Funds共同基金 |
| 37 | Insurance products and platforms保險產品及平台 |
| 38 | Financial products and services金融產品和服務 |
| 39 | Rebate or cashback services返利或返現服務 |
| 40 | Software or products related to trading of financial products and information與金融產品和信息交易有關的軟件或產品 |
| 41 | Single-purpose prepaid cards (including gift cards and other stored value cards)單用途預付卡 (包括禮品卡和其他儲值卡) |
| 42 | Illegal or un-registered fund-raising activities非法或未註冊的籌款活動 |
| 43 | Foreign exchange services外匯服務 |
| 44 | Peer to peer (P2P) lending services點對點（P2P）借貸服務 |
| 45 | Payment by instalments service分期付款服務 |
| 46 | Trading in invoices issued within the Peoples’ Republic of China在中華人民共和國境內開具的發票交易 |
| 47 | Trading or sale of virtual currencies (e.g. Bitcoin, Litecoin)交易或出售虛擬貨幣（例如比特幣，萊特幣） |
| 48 | Satellites antennas衛星天線 |
| 49 | Archaeological and cultural relics考古文物 |
| 50 | Trading or distribution of currency (both RMB and foreign currencies)貨幣（人民幣和外幣）的交易或分配 |
| 51 | Counterfeit or replica food products假冒或仿製食品 |
| 52 | Online sale of tobaccos and cigarettes線上銷售菸草和香煙 |
| 53 | Fireworks and firecrackers煙花爆竹 |
| 54 | Crude oil原油 |
| 55 | Human organs人體器官 |
| 56 | Surrogacy services代孕服務 |
| 57 | Services to facilitate plagiarism and examination fraud促進竊和考試欺詐的服務 |
| 58 | Protected species受保護物種 |
| 59 | Smuggled goods走私貨物 |
| 60 | Sales of distribution of event tickets without license (e.g. Olympic Games or World Expo tickets)無證銷售活動門票（例如: 奧運會或世博會門票） |
| 61 | Seeds種子 |
| 62 | Real estate不動產買賣 |
| 63 | Charitable Organizations慈善組織 |
| 64 | Auction sites and services拍賣場和服務 |
| 65 | Pawn services典當服務 |
| 66 | Lucky draws抽獎 |
| 67 | Sale of animals, plants or products with contagious and hazardous diseases出售具有傳染性和危險性疾病的動植物或產品 |
| 68 | Sale of animals, plants or products originating from areas declared with an epidemic outbreak of contagious diseases出售源自被宣布具有傳染性疾病流行病的地區的動植物 |
| 69 | Services or products facilitating unlawful public gathering有助於非法集會的服務或產品 |
Last update: Feb 2022