QIXIT SERVICE
AGREEMENT
Last Updated on
October 15, 2009
Qixit® is a component of the Qix™ suite of services (the “Qixit Service”)
provided by Qix Information Technologies LLC, a Missouri limited liability
company (“Qixit”, “us” or “we”). Our patent pending services include
the electronic transmission of user generated information, funds, and the
exchange of merchandise, services and marketing information via our network. This
Qixit Service Agreement (“Service Agreement”) sets forth, among other
things, the terms and conditions under which you may use the Qixit Service.
This Service Agreement is a legally binding contract between you and Qixit.
YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING
CONTRACT WITH QIXIT AND THAT YOU RESIDE IN THE UNITED STATES. IF YOU ARE NOT
OF LEGAL AGE TO FORM A BINDING CONTRACT WITH QIXIT, OR YOU DO NOT RESIDE IN THE
UNITED STATES, YOU MAY NOT USE THE QIXIT SERVICE OR ACCEPT THIS SERVICE
AGREEMENT.
By THE ACT OF
CREATING A QIXIT ACCOUNT AND/OR SENDING OR RECEIVING A QIXIT MESSAGE WITH OR
WITHOUT A TRANSACTION OF FUNDS, YOU SIGNIFY YOUR AGREEMENT TO THIS SERVICE
AGREEMENT. IF YOU DO NOT AGREE TO THIS SERVICE AGREEMENT (WITHOUT
MODIFICATION), YOU ARE NOT AUTHORIZED TO USE THE QIXIT SERVICE.
WE MAY REVISE, AMEND OR MODIFY THIS SERVICE AGREEMENT, IN
WHOLE OR IN PART, AT ANYTIME. WHEN WE DO, WE WILL ALSO (A) REVISE THE “LAST
UPDATED” DATE AT THE TOP OF THIS SERVICE AGREEMENT, AND (B) SEND AN MESSAGE TO
YOU AT YOUR QIXIT ADDRESS GIVING YOU NOTICE THEREOF. YOU AGREE THAT YOUR
CONTINUED USE OF THE QIXIT SERVICE AFTER ANY SUCH MESSAGE IS SENT TO YOU AT
YOUR QIXIT ADDRESS CONSTITUTES YOUR AGREEMENT TO SUCH REVISED, AMENDED OR
MODIFIED SERVICE AGREEMENT.
PLEASE NOTE THAT,
NOTWITHSTANDING ANYTHING CONTAINED IN THIS SERVICE AGREEMENT TO THE CONTRARY, THE
QIXIT SERVICE IS PROVIDED WITHOUT ANY WARRANTY AND SUBJECT TO LIMITATIONS ON
OUR LIABILITY. THESE PROVISIONS ARE IN SECTIONS 11 AND 12 BELOW.
YOU CONSENT TO RECEIVE ALL DISCLOSURES, NOTICES,
DOCUMENTS AND INFORMATION (“COMMUNICATIONS”) FROM US ELECTRONICALLY. WE MAY
PROVIDE ALL COMMUNICATIONS TO YOU ELECTRONICALLY BY POSTING ON OUR WEBSITE OR
BY SENDING A MESSAGE TO YOUR QIXIT ADDRESS. YOUR CONSENT TO RECEIVE
COMMUNICATIONS ELECTRONICALLY APPLIES TO ALL OF YOUR INTERACTIONS AND
TRANSACTIONS WITH QIXIT. YOU MAY REQUEST A PAPER COPY OF ANY LEGALLY REQUIRED
DISCLOSURES AND YOU MAY WITHDRAW YOUR CONSENT TO RECEIVE COMMUNICATIONS
ELECTRONICALLY BY CONTACTING QIXIT AT 3023 HWY K, Ste 527, O'Fallon, MO 63368
OR BY SENDING A QIXIT MESSAGE TO customerservice@qixit.com.
QIXIT RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT IF YOU WITHDRAW YOUR CONSENT
TO RECEIVE ELECTRONIC COMMUNICATIONS.
YOU ACKNOWLEDGE THAT YOU HAVE PRINTED AND/OR OR SAVED A
COPY OF THIS SERVICE AGREEMENT ON YOUR COMPUTER FOR YOUR RECORDS.
1. Registration,
Account Issuance, Relationship and Certain User Obligations.
1.1 Registration. You will be required to register with us in order to use the Qixit Service.
In
the course of such registration, and from time to time thereafter, you will be
required to provide certain information to us including, without limitation, personally
identifiable information such as your name, date of birth, and address.You
may have already provided some of this information to us. You represent and
warrant that any information you have provided to us is only true, accurate,
current and complete information, and you agree that any information that you
provide to us now or in the future will be only true, accurate, current and
complete information.
You further agree to give us prompt notice of any change
in any information provided. For information about our privacy practices,
please read our privacy policy.
You agree to the use and disclosure of your
information in accordance with such privacy policy. Use of a false name,
address, birth date or other account information will result in the closing of
your account and forfeit of any funds that would otherwise be due.
1.2 Account
Issuance. If we issue an account to you to use the Qixit Service (each an “Account”),
we will also issue a username and/or password for such Account to you. You
agree that you will not register for more than one Account. You are
responsible for all use of your Account, and you may not authorize any other
individual to access and/or use your Account. Accordingly, you agree to
protect your username and password by, among other things, keeping your
password and other information relating to your Account confidential. If,
notwithstanding the foregoing obligations, you allow another individual to use
your Account, you will be solely responsible for all use by the individual using
your Account.
1.3 Relationship.
It is expressly understood that you and Qixit
are, in all respects, independent parties to a contract. This agreement does
not create a relationship of principal and agent and neither party is to be
construed as the legal representative of the other. Nothing contained in this
agreement shall be construed to create a relationship of employer or employee,
partnership, or joint venture, fiduciary or similar relationship between you
and Qixit, for any reason whatsoever. It is also understood that as a
Qixit user, you are both (a) an independent Vendor (“Vendor”) who has a desire
to sell your own time, interest, good will, access to receive messages,
tangible goods, or services ("GOODS") to third party users of Qixit's
system, and (b) a consumer of GOODS offered by independent Vendors using
Qixit’s services. You are solely responsible for the promotion, delivery, and
quality of the GOODS you sell and for any GOODS you may purchase. Consistent with the parties' status as independent
contracting parties:
- You are not authorized to make any
warranty, promise, or representation on behalf of the Qixit for any
purpose.
- You agree that you shall not represent
to any person that you are the agent of Qixit, nor fail to correct any
misunderstanding as to such status.
- You will not have the power or
authority to, and agree that you will not, obligate or attempt to obligate
Qixit in any manner whatsoever.
- You will be solely responsible for
reporting or paying any sales taxes, or federal or state income taxes on
your earnings (including any earnings stemming from or related to this
agreement).
- You will be solely responsible
for withholding, paying and/or reporting federal or state income taxes,
FICA (Social Security or Medicare) taxes, FUTA taxes, state unemployment
insurance taxes, state disability insurance taxes, or any other taxes
directly associated with the compensation you pay to your employees,
contractors or agents.
- You agree that you are
responsible to obtain all relevant licenses and permits associated with
the legal operation of your enterprise. Furthermore, you agree to
indemnify and hold the Qixit harmless for any damages or costs incurred as
a result of your violation of any law, regardless of whether they are
actual, incidental, consequential, or punitive.
1.4 Certain
User Obligations. You agree that you are solely responsible (a) for
providing your access to the Internet, which access is necessary to use the
Qixit Service, and (b) maintaining copies of any messages, emails, data and/or
files sent or received via the Qixit Service. For the avoidance of doubt, Qixit
is not responsible for maintaining copies of any messages, emails, data
and/or files sent or received via the Qixit Service, other than a record of the
funds available in your Qixit Account as required by applicable law.
2. License
Grant, Restrictions and Qixit Service Modifications.
2.1 License
Grant.
Subject to the terms and conditions of this Service Agreement,
Qixit hereby grants you a non-exclusive license to, commencing on the date your
Account is issued to you and continuing thereafter throughout the term of this Service
Agreement, access and use the Qixit Service solely (a) through the Qixit web
site located at http:\\www.qixit.com (the “Qixit Web Site”), and/or (b) through
the use of the Qixit Client software (the “Qixit Client”), in each
instance solely for the purpose of sending and receiving electronic messages (“messages”)
on your own behalf including, without limitation, sending and receiving Qixit Payments
(as defined in Section 4.3.1 below). You agree not to access or use the Qixit Service
for any other purpose including, without limitation, any purpose that is
prohibited by this Service Agreement or is otherwise unlawful. You further
agree to comply with all applicable U.S. and international laws, statutes,
ordinances, regulations, contracts and applicable licenses regarding your use
of the Qixit Service including, without limitation, all federal and state laws
regulating email direct marketing, and to the guidelines of the Direct
Marketing Association for responsible use of email marketing.
2.2 General
Restrictions. The license granted in
Section 2.1 above extends only to you and not to any third party. You agree not to (a) use the Qixit Service
for any unlawful purpose, (b) use the Qixit Service for any activities
relating to any form of gambling, prostitution or pornography, (b)
license, sublicense, sell, resell, rent, lease, transfer, assign, distribute,
time share or otherwise commercially exploit the Qixit Service or make the Qixit
Service available to any third party, (c) attempt
to gain unauthorized access to the Qixit Service or take any action to bypass
any measures in place to prevent or restrict access to the Qixit Service (d)
attempt to exceed the privileges or authority granted to you to use of Qixit
Service, (e) access or use the Qixit
Service in order to (i) build a competitive product or service, or (ii) copy
any ideas, features, functions or graphics of the Qixit Service, (f) to the
maximum extent permitted by applicable law, modify, reverse engineer, translate, disassemble, enable disabled features,
decompile, copy or create derivative works based on the Qixit Service, or any part thereof, or cause or permit others
to do so, (g) take any action that
jeopardizes Qixit’s or its suppliers proprietary rights in the Qixit Service, (h)
attempt to acquire any rights in the Qixit Service, or (i) impair, interfere
with or disrupt the integrity, operation or performance of the Qixit Service (including,
without limitation, any data contained in the Qixit Service) or its availability
or usage by others including, without
limitation, taking any action that imposes, or may impose, an unreasonable or
disproportionately large load on the Qixit Service.
2.3 Restricted
Transmissions. Without limiting any provisions of Section 2.2 above, you
agree that you will not use the Qixit Service to link to, transmit, or attempt
to transmit, any material (whether such material is the content of an electronic
message, an attachment to a message, or otherwise) that (a) is false,
inaccurate or misleading, (b) is fraudulent or involves the sale of counterfeit
or stolen items, (c) is intended to provide yourself with a cash advance from
your credit card, or helping others to do so, (d) is related in any way
to gambling and/or gaming activities, including but not limited to payment or
the acceptance of payments for wagers, gambling debts or gambling winnings,
regardless of the location or type of gambling activity (including, but not
limited to, online and offline casinos, sports wagering and office pools), (e)
may infringe, misappropriate and/or violate any patent law, copyright law,
moral rights law, trade secret law, trademark law, unfair competition law,
publicity rights law, privacy rights law, or any other intellectual property
right of any third party, (f) may violate any applicable municipal, state or
federal law, rule, regulation or ordinance including, without limitation, the
laws, rules, and regulations of the U.S. Securities and Exchange Commission or
other securities exchanges, including but not limited to the rule against
making false or misleading statements to manipulate the price of any security
or to offer, sell, or buy any security, (g) may be defamatory, libelous,
unlawfully threatening or harassing, or vulgar, (h) is intended to impersonate
any person, or falsely state or otherwise misrepresent your affiliation with
any person or entity, (i) is sexually related material that is arousing,
indecent, explicit, obscene, licentious, or pornographic, (j) contains any
computer virus, Trojan horse, worm, or other means that may damage or interfere
with the Qixit Service, the Qixit Web Site, the Qixit Client, and/or any
computer or electronic files, (k) may interfere with, surreptitiously intercept
or expropriate any system, data or other personal information, (l) creates
liability for Qixit or cause Qixit to lose, in whole or in part, the services
of any of its internet service providers or other suppliers, and/or (m) may cause
Qixit and/or the Qixit Service to violate a law, statute, ordinance or
regulation.
2.4 Modifications
to Qixit Service and Maintenance. Qixit may modify, suspend, disable,
discontinue and/or restrict the use of all or any portion of the Qixit Service
including the availability of any function or feature at any time for any
reason (or no reason) and with or without notice. Qixit shall have the right,
but not any obligation, to implement bug fixes, to modify features, to upgrade
software or otherwise make changes to the Qixit Service, in each instance at
any time and with or without notice to you. Without limiting the generality
of the foregoing, Qixit may, with or without notice to you, modify, suspend,
disable, discontinue and/or restrict the Qixit Service’s hours of operation,
menu structures, access procedures, software commands, documentation, suppliers
and/or other features or services.
2.5 Protection
of Data and Files Sent Using the Qixit System. Qixit is not
responsible for maintaining copies of any messages, emails, data and/or files
sent or received via the Qixit Service, other than a record of the funds
available in your Qixit Account, which records shall be kept as long as
required by applicable law.
3. User
Collected Delivery Charges and Qixit Service Fees.
3.1 User
Collected Delivery Charges.
3.1.1
Delivery Charges. You may configure the Qixit
Service to require predetermined payments (each a “Delivery Charge”) for
accepting Qixit messages from all or some Qixit users who may choose to send
Qixit messages to you. In such event, Qixit messages will only be delivered to
your Account if the sender has authorized payment to you of the applicable Delivery
Charge.
If the sender has not authorized a payment sufficient to cover your
required Delivery Charge, the message will be blocked (you will not be notified
of the blocked message) and the sender will receive a bounce back notice of
what your required Delivery Charge is and the option to resend the message with
the required Delivery Charge. Specifically, the Qixit Service may allow you to
designate a Delivery Charge for (a) electronic messages that contain general
solicitations from advertisers of a specific category of goods or services, (b)
electronic messages from specific groups of users, and/or (c) electronic
messages from specific Qixit addresses. You are not required to charge a
Delivery Charge to receive electronic messages from any individual Qixit user
and/or advertiser designated as an Approved Advertiser, each as defined below. By
way of example, you may decide that advertisers of a particular type of product
must pay a Delivery Charge of $1 before their messages regarding such products
will be delivered to your Qixit Account, and you may decide that senders of
personal correspondence will be charged 5 cents.
3.1.2
Receipt of Individual Qixit User Messages. A Default
Delivery Charge will be required before delivery of any Qixit message
originating from any individual Qixit user account, unless you choose to set a
specific Delivery Charge associated with a specific Qixit user address included
in your address book. You will be able to modify the Default Delivery Charge
required from individual Qixit users included in your address book. For
example, you may set the Default Delivery Charge to 25 cents and the delivery
charge associated with myboss@qixit.com
to five cents and the delivery charge associated with mymom@qixit.com to zero cents. In this
example, messages from any one not in your address book would be blocked unless
they had authorized payment of 25 cents or more for delivery of the message to
you, while delivery of messages from myboss@qixit.com
would only require authorization to pay you 5 cents, and mymom@qixit.com messages would be delivered
without any required authorization for payment of a Delivery Charge.
3.1.3
Receipt of Mass Delivered Messages from Approved Advertisers
and Others. As a user of the Qixit Service, you agree to accept messages,
with delivery charges paid into your Qixit Account, from advertisers and other senders
of mass delivered messages (each an “Approved Advertiser”) accepted by
Qixit to use Qixit’s bulk message delivery service. All messages from Approved
Advertisers will be classified by a commercial category. In general, you may be
able to set a Delivery Charge associated with each commercial category. During
the Qixit Beta test, which is on going, we may block your ability to change the
Delivery Charge schedule for commercial categories for the first 30 days after
you begin using your Qixit Account. At the time your Qixit Account is
established, and for a period of up to one month thereafter, you may also
receive Qixit messages from Approved Advertisers (each a “Welcome Message”).
You will be unable to prevent these Welcome Messages from being delivered to
your Qixit Account, and you may not control the charge Delivery Charges, if
any, associated with Welcome Messages. Qixit may, in its sole discretion,
prescreen the Welcome Messages and all Approved Advertisers messages before
delivery of such messages to your Qixit Account. At all times, you may receive
messages from Qixit relating to the Qixit Service. You will be unable to
prevent these messages from being delivered to your Qixit Account, and you cannot
charge Delivery Charges for these messages.
3.2 Transaction
Fee.
3.2.1
General. The applicable fee for the Qixit Service (“Transaction
Fee”) is calculated based on a percentage of the Delivery Charge, if any,
and the Qixit Payment, if any, as set forth in the List of Qixit Service Fees.
You agree to pay any applicable fees and any value added, sales or other
taxes, if any, which we are required to collect with respect to your Account. Any
payment not received from you by the due date may accrue, at Qixit's
discretion, late charges at the rate of 1.5% of the outstanding balance per
month, or the maximum rate permitted by law, whichever is lower, from the date
such payment was due until the date paid. All fees are nonrefundable. In most
cases, fees will be deducted from the Delivery Charge and/or a Qixit Payment
which is credited to your account on receipt of the associated Qixit message.
3.2.2
Increase in Fees. Qixit may increase the fees listed
on the Fee List by giving
notice of such increase to you at least fourteen days prior to the date on which
the increase takes effect.
3.2.3
Advertiser Payment of Fees. If a Qixit user sending
you a Qixit message or an Approved Advertiser opts to pay the Transaction Fee
for any message delivered to your Qixit Account, you will not be charged a
Transaction Fee for that message.
4. Sending
and Receiving Payments and Referral Commissions.
4.1 Sending
Payments.
4.1.1
General. You may use the Qixit Service to send a payment
(“Qixit Payment”) to any other Qixit user with a valid Qixit Account.
4.1.2
Sending Limit. You may only send Qixit Payments that are
equal to or less than the total available funds in your Account. We may, at
our discretion, limit the amount of a Qixit Payment that you can send through
Qixit.
This limitation may be based on factors such as age of sender and
receiver, how long you or the other party have been members, past history of
transfers, and other factors intended to protect you, other users, and us from
acts of fraud.
4.1.3
Refused Transactions. When you send a Qixit Payment,
the recipient is not required to accept the payment for goods or services. The
recipient is free to return the Qixit Payment or, in some cases, to use the
Qixit Service to refuse acceptance of messages and Qixit Payments that you
attempt to send to them. You agree that you will not hold Qixit liable for any
damages resulting from a recipient’s decision not to accept a Qixit Payment. Any
undelivered Qixit Payment will be credited back to your Qixit Account
immediately upon (a) your cancellation of an undelivered payment, (b)
expiration of the time limit you assign for delivery of the payment, (c) upon failure
of delivery of the message to the addressed recipient, or (d) notice that the
addressed recipient has blocked receipt of messages from your address. Any
refunded Qixit Payments will be credited back to your Qixit Account immediately
upon your receipt of the refund from the recipient to whom you originally sent
the Qixit Payment.
4.2 Receiving
Payments.
4.2.1
Receiving Limit. We may, at our discretion, limit the
amount of funds that can be transferred into your Account through Qixit. This
limitation may be based on factors such as age of sender and receiver, how long
you or the other party have been members, past history of transfers, and other
factors intended to protect you, other users, and us from acts of fraud.
4.2.2
Risk of Reversal. When you receive a payment through
Qixit, you are not protected against a subsequent reversal of the transaction. This
may occur, for example, in the event that a buyer your GOOD registers a claim
with their credit card company or bank alleging that the GOODS they purchased
were not delivered, were damaged, or involved a fraudulent sale. If a
transaction is reversed, you will be responsible for the amount of the payment
plus any applicable fees. In the event that a sender’s transaction is reversed
for any reason, you agree that we may withdraw funds from your Account equal to
the reversed transaction amount, plus any fees that may be imposed on us as a
result of the reversal. If there are insufficient funds in your balance to
cover your liability, you agree to reimburse Qixit through other means; we
reserve the right to collect your debt by through any available legal means.
4.2.3
Returns. You also acknowledge and agree that as part
of Qixit’s commitment to customer service, Qixit may at its sole discretion approve
a return and refund in response to a Buyer’s dispute up to 90 days after the
sale of your Goods. In the event the sale is reversed, the Buyer’s account
shall be credited the refunded amount and any amounts for that sale that were credited
to your account, or to any affiliate accounts that may have been credited some
portion of the sale, shall be reversed. Any purchase revoked by a Buyer’s bank
or credit card may also result in charges or fees against the Vendor’s account
as described in our schedule of
fees.
4.2.4
Compensation. For all transactions QIXIT shall be
entitled to retain the percentages and charges listed in the schedule of fees. You agree to
pay any applicable fees and any value added, sales or other taxes, if any,
which we are required to collect with respect to your Account. Any payment not
received from you by the due date may accrue, at Qixit's discretion, late charges
at the rate of 1.5% of the outstanding balance per month, or the maximum rate
permitted by law, whichever is lower, from the date such payment was due until
the date paid. All fees are nonrefundable. In most cases, fees will be
deducted from your account balance.
4.3 Referral
Commissions
4.3.1
Availability
of Commissions. At various times we may offer commissions for
referring third parties to use Qixit. We are not obligated to offer referral
commissions at all times or to all users. We may also free to offer different
commission schedules to different parties. If we withdraw the opportunity
to receive commissions a notice will be sent to your Qixit address stating on
what date new referrals will no longer be accepted as commissioned referrals.
After that date, you will continue to receive any commissions you are entitled
to for any referrals made prior to that date under the terms that were in effect
the time you made a qualifying referral.
4.3.2
Qualifying
Referrals. You are only entitled to commissions for qualifying
referrals. A qualifying referral is one that for a new account where the
account holder (a) uses your referral code, (b) is for a resident of the United
States and is 18 years of age or older, (c) and the account holder does not
already have nor has previously had a Qixit. In the event that you are
paid commissions for a referral that is subsequently found to be non-qualifying,
an amount equal to the commissions erroneously paid will be charged against our
Qixit account.
4.3.3
Tracking
Referrals. When someone uses a link to our website with your
referral code, we will attempt to set a cookie that will be used to pre-fill the
referral code with your User ID. If your cookie is deleted, overwritten by
another, or the person chooses to erase or replace your referral code with
another one, you will not get credit for the referral. It is solely the
responsibility of you and the person creating the new account to ensure that the
intended referral code, your User ID, is entered into the referral code box when
the new account is created. If your referral code is not used, you will
not receive a commission.
4.3.4
Notices and
Payments. In general, a notice of each referral you make will be
sent to your Qixit account within minutes of the new account you referred being
created. All payments will be made to your Qixit account. In
general, you will receive a weekly notice of commissions paid to your account.
4.3.5
Commission
Schedule. As of April 6, 2009, our users shall be entitled to a
referral commission equal to 5% of the first $100 in delivery charges paid to
each of their qualifying referrals. Payments will be made to your Qixit
account on a weekly basis.
5. Electronic
Transfers.
5.1 Bank
Transfers. If you transfer funds from a bank or credit union account, this
will be done electronically via the Automated Clearing House (“ACH”). If
your account is authorized to make ACH transactions, Qixit will make electronic
transfers via ACH from your bank account in the amount you specify. You agree
that such requests constitute your authorization for such transfers, and once
you have provided your authorization for the transfer, you will not be able to
cancel the electronic transfer. You give Qixit the right to resubmit for
collection any ACH debit you authorized that is returned for insufficient or
uncollected funds. You may be charged a service fee for any ACH transactions
that result in a returned ACH item, including but not limited to those caused
by insufficient funds in your bank account, closure of your bank account, or
incorrect bank account information.
If you move funds into your Account, we
may require that your name, address, and other identifying information match
that of the account from which the funds are transferred. We may, at our sole
discretion, require additional information or forms of identification and may
use these to determine any limitations that may be placed on your use of the
Qixit Service, upon your account limits, or upon the maximum amount that you
are allowed to send or receive from your Account.
5.2 Funding
Source Limitations. We reserve the right to limit your choice of funding
sources available for any reason.
6. Unauthorized
ACH Transfers.
6.1 General.
You are liable for any unauthorized electronic fund transfer to the fullest
extent allowable under federal and state law.
7. Accounting
Procedures & Withdrawals and
7.1 Account
Balance. The account balance displayed in your QIXIT software includes
funds due to you from sales of your GOODS, plus any communication credits you
have purchased, plus any refunds you may have received for GOODS you have
purchased. As explained in the policy regarding QNAA payments above, purchased
credits are not available for cash payments. This policy precludes users from
attempting to use a credit card purchase to secure a cash advance.
7.2 Purchased
Communication Credits. Our software allows you to purchase communication
credits in increments of $5 up to maximum of $200. These transferrable credits
will be added to your account balance and will be pooled with the funds you
receive from third parties.
7.3 Withdrawal
Procedure. If authorized to do so, you may withdraw funds associated with
sale of your GOODS by direct deposit to the bank account you have on file with
us.
Alternatively, you may receive a physical check for a processing fee as
specified in the List of Qixit
Service Fees. Generally, checks will only be sent to the address of
record. To reduce the risk of fraudulent business activities, we reserve the
right to require you to provide Qixit with a number of forms of identification
to authenticate your identity prior to withdrawal of substantial amounts of
money.
7.4 Withdrawal
Limits. At our discretion, we may limit withdrawals and may require
additional information from you depending upon your location, credit rating,
and other factors.
7.5 Payment
Schedule. While Qixit will seek to accelerate its payment schedule as
resources and user base make it practical to do so, at the present time Qixit
will only process payments on a quarterly basis. Your request for a payment
must be made by the 15th day of January, April, July, or October and checks for
payments shall be mailed by first class mail by last business day of that
month. In order to assist the cash flow of major Vendors with quarterly sales
in excess of $1000, Qixit may provide other terms for select users at Qixit’s
sole option.
7.6 Reserves
and Return Allowance. Qixit may at its option hold a RESERVE against future
returns, refunds, or reversed changes based equal to 10% of your gross sales
calculated on an average of each month’s sales during the first year of this
Agreement and on a 12 month rolling average thereafter. Qixit may adjust your
return allowance at any time.
7.7 Quarterly
Net Amount Available For Cash Withdraw. The quarterly net amount available
("QNAA") for payment by check, as described above, shall equal the
available balance of funds in your account end of the prior quarter
(approximately 120 days prior to the check mailing date), minus the total of
any purchases of GOODS and/or communications credits since the end of the prior
quarter up to the date the check is cut, minus the reserve against returns, if
any.
Example: On December 31st you have $500 in available funds credited to
your account.
Between January 1st and March 31st, you have another $100 in
sales credited to your account and have made purchases totaling $300 which have
been debited from your account. On April 1st the available balance in your
account is $300 ($500 + $100 - $300), but your QNAA is $200 ($500 minus $300).
On April 1st you submit a request for payment by check of the full QNAA amount
of $200. However, between April 1st and April 30th, you make an additional
$50 in purchases, which lowers your available funds to $250 and your QNAA to
$150 ($500 minus $350).
On April a check for $150 will be mailed to you, and
the available balance remaining in your Qixit account will be $100. In this
example, no RESERVE is retained.
7.8 Payment
Threshold. The Payment Threshold is $10. If the QNAA on the day we cut
checks is less than $10, you will not be sent a check. The funds will remain
available in your account to spend within the Qixit system but may not be
disbursed to you by check until the next payment period, assuming your QNAA at
that time is over $10.
7.9 Revoked
Sales, Chargebacks and Other Fees. In the event that BUYERS of your GOOD
register a claim with their credit card company or bank alleging that the GOODS
they purchased were not delivered, were damaged, or involved a fraudulent sale,
the BUYERS payment may be reversed and the sale will be revoked. In such
cases, the banking system will automatically reverse the charge, withdrawing
the BUYERS funds from Qixit's bank account, and shall also charge us a reversed
charge fee. As shown in our schedule of charges and fees, you will be charged
a fee for each credit card chargeback you may be charged a higher fee if you
have an abnormally high number of chargebacks per month. Qixit reserves the
right to cancel any VENDORS account, or to delist any GOODS at any time.
To reduce the risk that you will be
charged with chargeback fees:
·
Remind BUYERS of any GOODS you sell via Qixit that neither your
company nor your product's brand name will not appear on their credit card
statement. Instead they will see the name "QIXIT*COM".
·
Please make it very easy for the customer to contact you for
technical support. We encourage you to display your email address and phone
number on both your GOODS offering and GOODS delivery page.
·
Be generous in giving refunds directly from your Qixit account to
your BUYER's Qixit account. Remember, whether warranted or not, a BUYER's
complaints may result not only in a reversal of the sale but also a reversal
fee.
7.10 Account
Closure. You may close your account at any time. Any closing balance under
$10 will be forfeited.
7.11 Dormant
Accounts. Accounts with a positive balance but no earnings for 60 days or
longer are considered dormant. Dormant accounts are subject to a charge of $1
per quarter and $10 per quarter after 365 days of inactivity.
7.12 Refund Policies. All
sales are final. Any refund guarantee offered by a Vendor (a third party Qixit
user) must be settled with that Vendor. As we seek to enforce our policies and
to promote customer satisfaction, Qixit customer support will evaluate any
complaints and refund requests as time permits. After investigating any user’s
complaints, Qixit reserves the right to reverse any payments, for any reason
allowed by any term of this contract.
8. Account
Information and Error Resolution.
8.1 Transaction
History. You may access your transaction history and account balance
information from your Qixit Software or when you log in to your account at
Qixit.com.
8.2 Account/Error
Inquiries. If you have questions about your transaction history or believe
an error has been made on your Account, please contact us immediately. If you
think your history or statement is wrong or if you need more information about
a transfer listed on the history or statement, or have any other concern you
may notify us through the Qixit Service by sending a message detailing your
concern to customerservice@qixit.com
or by sending a postage paid letter to Customer Service, Qix Information
Technology, LLC, 3023 HWY K, Ste 527, O'Fallon, MO 63368. We must hear from
you no later than sixty (60) days after you knew or should have known about the
improper account activity.
8.3 Error
Notification Details. Include the following when notifying Qixit of any
improper account activity: (a) your name and account number; (b) a description
of the error or the transfer you are unsure about, including why you believe it
is an error or why you need more information; and (c) the dollar amount of the
suspected error.
8.4 Error
Resolution Process. We will determine whether an error occurred within 10
business days after we hear from you and will correct any error promptly. If
we need more time, however, we may take up to 45 days (90 days for errors
involving new accounts or foreign transactions) to investigate your complaint
or question. If we decide to do this, we will credit your Account within 10
business days (20 business days for new accounts or foreign transactions) for
the amount you think is in error, so that you will have the use of the money
during the time it takes us to complete our investigation. If we ask you to
put your complaint or question in writing and we do not receive it within 10
business days, we may not credit your Account. We will tell you the results
within three (3) business days after completing our investigation. If we
decide that there was no error, we will send you a written explanation. You
may ask for copies of the documents that we used in our investigation.
8.5 Liability
of Qixit. If we discover a processing error, we will correct it, crediting
or debiting your Account as necessary. If a processing error resulted in our
not completing a transaction on time or in the correct amount, we will be
liable for your losses or damages directly and proximately caused by this
failure, unless: (a) through no fault of ours, you did not have enough
available funds to complete the transaction; (b) our system malfunctioned and
you knew about the malfunction when you initiated the transaction; or (c)
circumstances beyond our control prevented the transaction, despite our
reasonable precautions.
8.6 Regulation
E Disclosures. Our commitments to you in this Service Agreement related to
liability for unauthorized transfers, contact information and business days,
limitations we may impose on transfers, fees, transaction history and periodic
statements, Qixit liability, your privacy, and error resolution rights and
procedures constitute disclosures under the Electronic Fund Transfer Act and
Federal Reserve Board Regulation E, 12 C.F.R. § 205.1 et seq.
9.
Termination, Suspension and Survival.
9.1 Termination. We may, in our sole discretion, terminate your Account at any time and for any reason (or
no reason) by giving you notice thereof, and any such termination shall be
effective on the date set forth in such notice or if no date is set forth in
such notice on the date such notice is sent. Without limiting our rights
set forth above in this Section 9, we may immediately terminate this Service
Agreement if we determine that your use of the Qixit Service may infringe one
or more the intellectual property rights of a third party or aids or threatens
such infringement. Upon the termination of your
Account for any reason, this Service Agreement shall automatically terminate
subject to Section 9.3 below. You
agree that if upon the termination of the Qixit Service, you will not thereafter use or access, or
attempt to use or access, the Qixit Service, directly or indirectly. Any uncollected and unrestricted funds
in your Account will be distributed to you no less than 30 days and no more
than 180 days after such a termination.
9.2 Suspension. We may, in our sole discretion, suspend your use of the Qixit Service, or any portion
thereof, at any time and for any reason (or for no reason) by giving you notice
thereof, and any such suspension shall be effective on the date set forth in
such notice or if no date is set forth in such notice on the date such notice
is sent. You agree that if your use
of the Qixit Service is suspended, you will not thereafter use or access, or
attempt to use or access, the Qixit Service, directly or indirectly, until your
suspension is removed and we give you notice thereof.
9.3 Survival.
Termination shall not relieve you from any obligations to pay any amounts
which may be due hereunder on or prior to the effective date of termination.
Additionally, Sections 3.2.1, 10, 11, 12, 13, 14, 15 and 16 shall survive the
termination of this Service Agreement for any reason.
10. Ownership. You acknowledge and agree that all
right, title, and interest in and to the Qixit Service including, without
limitation, all patents, copyrights, trademarks, trade secrets and other
intellectual property rights in and to the Qixit Service, in each instance are
owned exclusively by, and shall be retained exclusively by, Qixit and/or its
applicable suppliers. Subject only to the limited license granted in Section
2.1 above, all rights in and to the Qixit Service are hereby reserved by Qixit.
You shall be deemed to assign to Qixit all right, title, and interest
including, without limitation, all patent, copyright, trademark and related
goodwill, trade secret and other intellectual property rights in and to any and
all suggestions, enhancement requests, recommendations or other comments and/or
feedback provided that you provide to Qixit relating to the Qixit Service.
11. Indemnification. You
hereby agree to indemnify and hold harmless Qixit and its parents, subsidiaries, affiliates, officers,
directors, agents, employees, shareholders, suppliers and licensees
(collectively, “Indemnified Parties”) from and against any and all
liability and costs, including, without limitation, reasonable attorney’s fees,
incurred by the Indemnified Parties in connection with any claim arising out of
(a) your access and/or use of the Qixit Service, (b) any breach of this Service Agreement by you or any user of your Account,
and/or (d) any allegation which, if true, would constitute a breach of
any of this Service Agreement, whether by you
or any user of your Account.
12. Disclaimer. The Qixit
Service is provided on an “AS IS”, “WITH ALL FAULTS”, AND “AS
AVAILABLE” basis. We do not promise or
warrant that any aspect of the Qixit Service will
work properly or will be continuously available, and
except as provided in Section 8.5 above regarding processing errors, we assume
no liability or responsibility for any error or omission in respect of the Qixit
Service. Qixit makes no representations or warranties relating to the Qixit
Service including, without imitation, any representation or warranties that (a)
the Qixit Service shall meet your requirements, (b) the operation of the Qixit Service
shall be uninterrupted or error free, and/or (c) any defects in the Qixit
Service will be corrected.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, QIXIT MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED,
ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES
OF MERCHANTABILITY, REASONABLE CARE, ACCURACY, AND/OR FITNESS FOR A PARTICULAR
PURPOSE (WHETHER OR NOT QIXIT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR
IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), AND QIXIT HEREBY DISCLAIMS ANY
AND ALL SUCH WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QIXIT
FURTHER DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS OF TITLE AND
NON-INFRINGEMENT WITH RESPECT TO THE SERVICE. Some jurisdictions do not
allow implied warranties to be excluded or modified, so not all of the above
limitations may apply to you.
13. Limitation
of Liability.
13.1
Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL QIXIT OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
PUNITIVE SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS SERVICE AGREEMENT AND/OR THE QIXIT SERVICE, WHETHER FOR
BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF QIXIT IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
13.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN
NO EVENT SHALL QIXIT OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES OF ANY NATURE
WHATSOEVER RESULTING FROM, OR RELATED TO, (A) THE LOSS, DELAY OR INABILITY TO
USE THE QIXIT SERVICE, AND/OR (B) THE LOSS OF ANY DATA, ANY INFORMATION,
SOFTWARE, PRODUCTS, AND/OR SERVICES CAUSED BY THE QIXIT SERVICE, IN EACH INSTANCE WHETHER SUCH DAMAGES ARISE
UNDER ACTIONS FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN ALL EVENTS, QIXIT’S AGGREGATE LIABILITY FOR
CLAIMS RELATING TO THIS AGREEMENT AND/OR THE QIXIT SERVICE, WHETHER FOR BREACH
OF CONTRACT, IN TORT OR OTHERWISE, SHALL BE LIMITED TO $100. THIS
SECTION 13.2 SHALL NOT APPLY TO PROCESSING ERRORS, WHICH SHALL BE SUBJECT TO
SECTION 8.5 ABOVE.
14. Release.
In the event that you have a dispute arising from your use of the Qixit Service
with any third party, you release Qixit (and its officers, directors, agents, affiliates,
suppliers and employees) from claims, demands and damages (actual and
consequential) of every kind and nature, known and unknown, suspected and
unsuspected, disclosed and undisclosed, arising out of or in any way connected
with such dispute. If you are a California resident, you waive California
Civil Code §1542, which says: “A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time
of executing the release, which if known by him must have materially affected
his settlement with the debtor.” Whether or not you are a California resident,
you waive and relinquish all rights and benefits under any legal principle with
the similar affect of California Civil Code §1542 in any jurisdiction with
respect to the release granted above in this Section 14.
15. Notices.
We may give notice to you relating to the Qixit Service and/or this Service
Agreement by sending an Qixit message to your Qixit address and/or to you last
known postal address, and any such notice shall be deemed given and received on
the day it is sent. You may give notice to use by mail to General Counsel, Qix
Information Technology, LLC, 3023 HWY K, Ste 527 O'Fallon, MO 63368 and with a duplicate electronic copy sent to customerservice@qixit.com.
16. General
Provisions.
16.1 Entire Agreement. This
Service Agreement constitutes the complete and final agreement and
understanding between the parties with respect to the subject matter hereof,
and supersedes and merges all prior and contemporaneous agreements,
negotiations, and understandings between the parties, both oral and written, with
respect to the subject matter hereof.
For the avoidance of doubt, this Service
Agreement does not supersede or merge, as applicable, the Terms of Use applicable to the Web
Site and/or the Qixit
Client Software License.
16.2 Governing
Law and Jurisdiction. This Service Agreement is entered into in St. Charles County, Missouri. This Service Agreement, and all matters arising out of
or relating to this Service Agreement, shall be governed by the laws of the
State of Missouri and the United States, without giving effect to the conflict
of law provisions thereof and excluding any application of the United Nations
Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The
Uniform Computer Information Transaction Act shall not apply to this Service
Agreement.
You consent to exclusive jurisdiction and venue in the federal
courts sitting in St. Charles, Missouri, unless no federal subject matter
jurisdiction exists, in which case you consent to exclusive jurisdiction and
venue in the state courts sitting in St. Charles County, Missouri. You
hereby irrevocably waive, to the fullest extent permitted by applicable law,
any objection which you may now or hereafter have to the laying of venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. You agree
that any cause of action that you may desire to bring arising out of or related
to this Service Agreement and/or the Qixit Service must commence within one (1)
year after the cause of action arises; otherwise, such cause of action shall be
permanently barred.
16.3 Arbitration.
ALL CLAIMS ARISING UNDER THIS SERVICE AGREEMENT AND/OR OTHERWISE RELATING TO
THE QIXIT SERVICE (EXCLUDING CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF)
WILL BE SETTLED BY BINDING ARBITRATION CONDUCTED IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE
PLACE OF THE ARBITRATION SHALL BE ST. LOUIS, MISSOURI. AN ARBITRATOR MAY NOT
CONSOLIDATE ARBITRATION PROCEEDINGS UNDER THIS SERVICE AGREEMENT WITH OTHER
PENDING ARBITRATION PROCEEDINGS WITHOUT THE PRIOR WRITTEN CONSENT OF ALL
DISPUTANTS. ONE ARBITRATOR WILL PRESIDE OVER THE ARBITRATION. SUBJECT TO THE
CONTROL OF THE ARBITRATOR OR AS THE DISPUTANTS MAY OTHERWISE MUTUALLY AGREE,
THE DISPUTANTS WILL HAVE THE RIGHT TO CONDUCT REASONABLE DISCOVERY FOR A PERIOD
OF FORTY-FIVE (45) DAYS AFTER THE FILING OF AN ANSWER OR OTHER RESPONSIVE
PLEADING. THE ARBITRATOR MAY NOT AWARD PUNITIVE DAMAGES AND MAY NOT MAKE ANY
RULING, FINDING OR AWARD INCONSISTENT WITH THIS SERVICE AGREEMENT. ANY
DISPUTANT MAY ENTER A JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR IN ANY
COURT HAVING JURISDICTION OVER THE DISPUTE.
NEITHER A PARTY NOR AN ARBITRATOR
MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION PROCEEDING.
A NON-PREVAILING DISPUTANT WILL REIMBURSE A PREVAILING DISPUTANT’S REASONABLE
LEGAL AND ARBITRATION FEES AND EXPENSES.
THE AWARD OF THE ARBITRATOR WILL
INCLUDE A REASONED OPINION. THIS SERVICE AGREEMENT INVOLVES INTERSTATE
COMMERCE AND IS THEREFORE ENFORCEABLE AS PROVIDED IN THE FEDERAL ARBITRATION
ACT. NEITHER PARTY SHALL PUBLICLY DISCLOSE THE FACT OF OR THE RESULTS OF ANY
ARBITRATION EXCEPT WITH THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY. THE ARBITRATION AND ALL PLEADINGS, HEARINGS AND
COMMUNICATIONS RELATING THERETO WILL BE CONFIDENTIAL. EACH PARTY SHALL BEAR
ITS OWN COSTS ASSOCIATED WITH SUCH ARBITRATION.
16.4 Assignment. Neither
this Service Agreement nor any of the licenses, rights, interests or
obligations hereunder may be assigned by you (whether by operation of law or
otherwise) without the prior written consent of Qixit. Qixit may assign this
Service Agreement, in whole or in part, without your consent. Subject to the
foregoing, this Service Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors and
permitted assigns.
16.5 Injunctive
Relief. You acknowledge and agree that there can be no adequate remedy at
law for any breach (or threatened breach) of this Service Agreement and that
any such breach (or threatened breach) may cause irreparable harm to Qixit,
and, therefore, that upon any breach (or threatened breach) of any provision of
this Service Agreement, Qixit will be entitled to
seek from a court extraordinary relief including but, not limited to, temporary
restraining orders, preliminary injunctions, permanent injunctions, and/or decrees
of specific performance.
16.6 Severability.
If any provision of this Service Agreement is declared or found to be illegal,
unenforceable or void, then both parties shall be relieved of all obligations
arising under such provision, but only to the extent that such provision is
illegal, unenforceable or void, it being the intent and agreement of the
parties that this Service Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it legal and enforceable while
preserving its intent or, if that is not possible, by substituting therefore
another provision that is legal and enforceable and achieves the same
objective. If the remainder of this Service Agreement is not be affected by
such declaration or finding and is capable of substantial performance, then,
each provision not so affected shall be enforced to the extent permitted by
law.
16.7 Electronic
Documents. A printed version of this Service Agreement and of any notices
given to you in electronic form shall be admissible in judicial or administrative
proceedings based upon or relating to this Service Agreement to the same extent
and subject to the same conditions as other business documents and records
originally generated and maintained in printed form.
16.8 Force
Majeure. Qixit shall not be responsible or liable for any unavailability of
the Qixit Service caused by circumstances beyond Qixit’s reasonable control
including, without limitation, acts of God, acts of government, flood, fire,
earthquakes, civil unrest, acts of terror, computer, telecommunications,
Internet service provider or hosting facility failures or delays involving hardware,
software or power systems, and denial of service attacks.
16.9 Waiver.
Qixit’s failure to enforce any provision or provisions of this Service
Agreement shall not in any way be construed as a “course of dealing” or a
waiver of any such provision or provisions as to any future violations thereof,
nor prevent Qixit from thereafter enforcing each and every other provision of
this Service Agreement.
No waiver shall be binding upon Qixit unless it is in
writing and signed by Qixit.
Such waiver shall apply only to the specific
default or the instance specified, and a waiver of any default shall not waive
any other default, whether or not similar to the default waived.
16.10 Cumulative
Remedies. None of Qixit’s rights or remedies conferred by this Service
Agreement are exclusive of any other right or remedy conferred herein or by law
or in equity; rather, all of such rights and remedies are cumulative of every
other such right or remedy and may be exercised concurrently or separately from
time-to-time.
16.11 Government
End Users. Qixit provides the Qixit Service, including related
software and technology, for ultimate federal government end use solely in
accordance with the following: Government technical data and software rights
related to the Qixit Service include only those rights customarily provided to
the public as defined in this Service Agreement. This customary commercial
license is provided in accordance with FAR 12.211 (Technical Data) and FAR
12.212 (Software) and, for Department of Defense transactions, DFAR
252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in
Commercial Computer Software or Computer Software Documentation).
If a
government agency has a need for rights not conveyed under these terms, it must
negotiate with Qixit to determine if there are acceptable terms for
transferring such rights, and a mutually acceptable written addendum
specifically conveying such rights must be included in any applicable contract
or agreement.
16.12 No
Third-Party Beneficiaries. Except for third parties who are Indemnified
Parties, there are no third-party beneficiaries of this Service Agreement.
16.13 Construction.
All defined terms used in this Service Agreement shall be deemed to refer to
the masculine, feminine, neuter, singular and/or plural, in each instance as
the context and/or particular facts may require. Use of the terms “hereunder”,
“herein”, “hereby”, and similar terms refer to this Service Agreement. All
captions contained in this Service Agreement are for convenience only and shall
not be deemed to be part of this Service Agreement. Accordingly, they shall
not constitute a part of this Service Agreement when interpreting or enforcing
this Service Agreement.
No provision of this Service Agreement shall be
construed against either party by virtue of the fact that such provision was
drafted by such party.
