CheqrPay
SERVICES AGREEMENT

Last Updated: September 30, 2022

This Services Agreement, together with the attached Schedule(s) (collectively, “Agreement”), governs your access to and use of CheqrPay™, a mobile and web application for facilitating third-party payments to, or on behalf of, you (“Client”). This Agreement is entered into by and between Client and Cheqr Payment Solutions LLC (“Company”) as of the date that Client first accesses CheqrPay (“Effective Date”).

By checking the box to indicate acceptance or accessing or using CheqrPay, Client agrees to the terms and conditions of this Agreement, Company’s Privacy Policy, and Company’s Terms of Use, as those documents may be updated or modified from time to time (collectively, “Terms”). If Client does not agree to the Terms, Client shall not access or use “CheqrPay.” Please read the Terms carefully. Pre-printed terms and conditions on any purchase order or other document provided by Client shall not become part of the Terms and shall be of no force or effect.

Company’s Privacy Policy and Terms of Use are available at https://cheqrpay.com/privacy-policy and https://cheqrpay.com/terms-of-use.

1. DEFINITIONS.

For the purposes of this Agreement:

“Authorized User” means any individual authorized by Client to access and use CheqrPay (as defined below), subject to the terms and conditions of this Agreement.

“Business Day” means a day other than a Saturday, Sunday, or holiday recognized by the Federal Reserve System, as published by the Board of Governors on the Federal Reserve System’s website.

“CheqrPay” means and refers to the application as a service, comprising the CheqrPay mobile application and web application, the Services, Documentation, and Support (as defined below), and all related tools, applications, and services provided by Company (collectively, “Services”). The Company retains all rights and title in, and interest in, CheqrPay, except as expressly provided herein. The Company grants no implied licenses to Client.

“Client Data” means data that Client enters into or uploads to CheqrPay.

“Payer” refers to any person who makes payments to Client through CheqrPay.

“Documentation” includes user guides or other materials provided by Company to assist Client in using CheqrPay. Company may update or modify such materials from time to time, in its sole discretion.

“Intellectual Property” means all copyright, patents, trademarks (registered or unregistered), inventions, trade secrets, know-how, product formulations, designs, software, applications, circuit layouts, databases, brand names, business names, domain names, and other forms of proprietary information or materials.

“Payment Plan” means an arrangement between Client and a Payer under which the Payer makes payments to Client periodically.

“Person” means and refers to an individual or entity, such as a corporation, limited liability company, or other legal entity that can sue or be sued, own property, or enter into contracts.

“Services” means the services provided by Company, as described herein, including access to and the use of CheqrPay.

“Support” means and refers to the support and related services provided by Company to assist Client and Authorized Users in accessing and using CheqrPay.

2. SERVICES.

2.1. Non-Exclusive Right. Subject to the terms and conditions of this Agreement, Company hereby grants to Client the non-exclusive right to access and use CheqrPay in object code form only.

2.2. Third-Party Providers. Client acknowledges that Company offers, maintains, and supports CheqrPay using third party hosting and payment processing service providers. Client’s access to or use of CheqrPay depends on such providers, which operate under reasonable standards suitable for commercial dependency. Client acknowledges that Company has no control over the providers.

2.3. CheqrPay is accessible for use by Client, Authorized Users, and Payers via a mobile or other device supplied by the user.

2.4. Client acknowledges and agrees that Company may adjust the Terms and CheqrPay’s configuration from time to time based on technological advancements, changes in industry practices or standards, or changes in applicable law.

2.5. The Company reserves the right to upgrade, add or remove features, redesign, improve, or otherwise alter the functionality of CheqrPay in its sole discretion.

2.6. Client’s obligations under this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding such functionality or features.

3. USING CHEQRPAY.

3.1 Authorized Users. Client shall designate Authorized Users of CheqrPay. Client shall not designate more than the number of Authorized Users stated on Schedule A to this Agreement without Company’s prior written consent. Each Authorized User must register his or her full name and a valid email address with CheqrPay. Client is responsible for all acts or omissions of Authorized Users with respect to CheqrPay.

3.2 Payers. The Client shall set up an account for each category of payment made via CheqrPay. Payer access to CheqrPay shall be limited to information provided by Client concerning each such type and to records of Payer’s transactions via CheqrPay

3.3 Timing. The Company shall work with Client on a mutually agreeable timetable for Client onboarding.

3.4 Client Data. Client is responsible for the security, quality, integrity, reliability, accuracy, and appropriateness of all Client Data supplied by Client for uploading to CheqrPay. Client shall ensure that its access, collection, use, relocation, storage, and disposition of Client Data complies with all applicable laws. The Company shall have no right, title, or interest in Client Data, except as otherwise set forth in this Agreement.

3.5 HIPAA. The Client shall not upload or otherwise provide to Company any personally identifiable health information protected from disclosure under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), rules, and regulations.

3.6 Communications. Client shall comply with all applicable laws governing its communications and other interactions with Payers.

3.7 Client Privacy Policy. Client shall maintain a privacy policy at all times that complies with applicable laws. Client shall provide a link to its privacy policy governing the collection, use, transmission, sharing, and storage of personal data, unless exempt from maintaining a privacy policy under applicable law.

3.8 Access and Use. Client is responsible for preventing unauthorized access to or use of CheqrPay, which responsibilities include securing user names, passwords, or other login credentials of Authorized Users. Client shall notify Company promptly of any unauthorized access to or use of CheqrPay of which it becomes aware. Company shall not be liable to Client for any unauthorized use of CheqrPay by any person.

4. PERFORMANCE.

4.1 Technical Requirements. Client shall be responsible for obtaining and maintaining a device and connection to the internet with sufficient bandwidth and processing power to access and use CheqrPay.

4.2 Transmission. The Company shall use reasonable efforts to ensure that it transmits, uses, and stores Client Data in accordance with accepted industry standards and in compliance with all applicable laws.

4.3 Storage. The Company may limit the amount of Client Data stored in connection with Client’s use of CheqrPay and shall advise Client of any such limitation. Client Data shall be stored according to accepted industry standards.

4.4 The Company may perform backups of Client Data in such a manner and at such times and intervals as are reasonable for its business purposes. Company does not warrant its ability to backup or recover specific Client Data for any time, unless so stated in a writing signed by Company.

4.5 Access. Company will perform routine maintenance and backups of CheqrPay from time to time via its third-party hosting service and shall use its best efforts to ensure that such functions take place outside of normal business hours (8:00 a.m. to 5:00 p.m. Central) to avoid materially diminishing access to and the functionality of CheqrPay. The Company cannot guaranty access to CheqrPay and shall not be liable for interruptions in service.

4.6 Cooperation. Client shall reasonably cooperate with Company in identifying the cause of any failure of CheqrPay to conform to or perform in accordance with the Documentation. The Company reserves the right to charge Client, and Client agrees to pay, Company’s then-current time and materials rates for all time Company spends determining that an alleged problem does not in fact arise from the Services provided under this Agreement.

4.7 COMPANY HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY NATURE WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT CHEQRPAY OR THE SERVICES WILL MEET THE SUBSCRIBER’S REQUIREMENTS OR THAT CHEQRPAY WILL OPERATE UNINTERRUPTED OR ERROR FREE.

5. PAYMENTS.

5.1. Fees. Client shall pay Company fees for the Services as provided in Schedule A.

5.2. Payment. Company will deduct transaction fees for Services directly from payment proceeds and remit the net amount to the Client. The net amount of any and all payments will be deposited into the Client account on a weekly basis on Wednesdays. Client may request an alternative payment schedule which may be daily, weekly (on a day other than Wednesday) or monthly. This request should be submitted in writing to support@cheqrpay.com.

5.3. Currency. All fees shall be quoted and paid in U.S. dollars.

5.4. Taxes. Client shall be responsible for the payment of all applicable taxes including, without limitation, state and local sales and use taxes, as defined under applicable state laws, regulations, and local ordinances.

5.5. Disputed Statements. Client shall provide Company with notice of the disputed amount of any payments, including the reasons therefore, within thirty (30) days of receipt of each monthly statement. Client’s failure to provide Company with the notice provided for in this paragraph shall be deemed to be Client’s acknowledgement that the statement reflects amounts properly due and payable.

5.6. Fee Adjustments. The Company reserves the right to adjust fees from time to time with no less than 14 days’ advance notice to Client, effective on the first day of the month following such notice.

6. RESTRICTIONS

6.1. Client acknowledges that CheqrPay is the Intellectual Property of Company. The Client warrants that Client (including Authorized Users) will not, directly or indirectly, copy, recreate, decompile, reverse engineer, or otherwise obtain, modify, or use any source or object code, architecture, or algorithm contained in CheqrPay.

6.2. Client, including its Authorized Users, shall not:

6.2.1. access or use any portion of CheqrPay or the Services, except as expressly permitted in this Agreement;

6.2.2. disassemble, decompile, or otherwise reverse engineer all or any part of CheqrPay;

6.2.3. use CheqrPay or the Services for any unlawful purpose;

6.2.4. export CheqrPay or any part thereof in violation of this Agreement or applicable laws;

6.2.5. subcontract, distribute, disclose, rent, lease, or otherwise make available the CheqrPay, the Services, or any part thereof, for use by any third person; or

6.2.6. modify, adapt, or use CheqrPay to develop any application, software, or related services for resale.

6.3. Third Party Rights. CheqrPay may incorporate or rely upon the proprietary information or Intellectual Property of third persons, as authorized by such persons. Client acknowledges and agrees that such information or Intellectual Property may be protected under copyright, trademark, patent, and other applicable law, both domestically and internationally. Client warrants that neither Client nor its Authorized Users shall infringe upon Company’s or any third party’s rights in connection with access to or use of CheqrPay.

7. CONFIDENTIAL INFORMATION

7.1. Confidential Information. Each party acknowledges and anticipates the disclosure of confidential, proprietary, or trade secret information of the other party (Confidential Information) pursuant to this Agreement. Confidential Information shall include: (i) CheqrPay and the terms and conditions of this Agreement; (ii) non-public information if it is clearly and conspicuously marked as confidential or with a similar designation at time of disclosure; (iii) non-public information of the disclosing party if identified as confidential during its presentation or communication; and (iv) any information that the receiving party knows or reasonably should know is confidential based on the nature of the information and the context in which disclosed.

7.2. Exceptions. Confidential Information shall not include information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was in the receiving party’s possession before receipt from the disclosing party; (iii) is disclosed to the receiving party by a third party without any duty of confidentiality; (iv) is disclosed by the disclosing party to a third party without imposing a duty of confidentiality on the third party; (v) is independently developed by the receiving party without reference to or the benefit of the disclosing party’s Confidential Information; or (vi) is disclosed with the prior written approval of the disclosing party.
Confidential Information of disclosing party may be disclosed in response to a valid court order, but only to the extent required by such order and, if allowed by law, only after the receiving party has given the disclosing party prompt notice of such court order or other legal process and the opportunity for the disclosing party to seek a protective order or other protection against disclosure.

7.3. Disclosure. Each party agrees not to make Confidential Information of the other party available in any form to any third party or to use Confidential Information for any purpose other than for the purposes of this Agreement. The parties agree to restrict disclosure of Confidential Information to those who have a “need to know” and to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of this Agreement. Further, each party acknowledges that an unauthorized disclosure of Confidential Information by the receiving party may result in the disclosing party suffering irreparable damage for which there is no adequate remedy at law. The receiving party agrees that, in the event of a breach or threatened breach of its obligations under this Section 8, the disclosing party shall be entitled to seek injunctive relief, without the need to post bond or prove special damages, in addition to other remedies under this Agreement or at law.

7.4. Control. Each party agrees to hold Confidential Information of the other party in confidence and to protect such Confidential Information by using the same degree of care to prevent the unauthorized access, use, dissemination, or publication as used by the receiving party to protect its own Confidential Information of a like nature, but in no event with less than reasonable care.

7.5. Notice. Each party agrees to provide the other party with prompt notice of any actual, suspected, or likely unauthorized disclosure of the Confidential Information of the other party.

7.6. Return of Confidential Information. Upon request of the disclosing party, termination, or expiration of this Agreement, the receiving party shall, to the extent commercially practicable, destroy the disclosing party’s Confidential Information and, at the disclosing party’s request, certify the same in writing.

8. TERM AND TERMINATION

8.1. Term. The term of this Agreement shall begin on the Effective Date and continue until Client requests the termination of their account, unless terminated earlier as provided herein.

8.2. Termination. Either party may terminate this Agreement without cause upon providing 30 days’ prior written notice to the other party. Either party may terminate this Agreement in the event of a material breach by the other party and failure to cure within 10 Business Days of notice of such breach. A party also may terminate this Agreement immediately upon notice in the event the other party:

8.2.1. is liquidated, dissolved, subject to a receivership, or the subject of a voluntary or involuntary petition in bankruptcy;

8.2.2. is insolvent, unable to pay its debts as they become due, makes an assignment for the benefit of creditors, or takes advantage of any law for the benefit of debtors; or

8.2.3. ceases to operate in the ordinary course of business.

8.3. Injunctive Relief. Client acknowledges and agrees that any breach or threatened breach of its obligations under this Agreement may result in Company suffering irreparable damage for which there is no adequate remedy at law and that, in the event of such breach or threatened breach, Company shall be entitled to seek injunctive relief, without the need to post bond or prove special damages, in addition to other remedies provided for under this Agreement, at law, or in equity.

8.4. No Obligation. Upon expiration or termination of this Agreement, Company shall have no obligation to provide access to or maintain or store Client Data and may delete all Client Data from CheqrPay.

9. INDEMNITY.

9.1. Indemnity Obligations of Company. The Company agrees to indemnify, hold harmless, and defend Client and its Authorized Users, directors, officers, employees and agents (collectively the “Client Indemnitees”) from and against all losses, liabilities, damages, and expenses, including reasonable attorney fees and court costs, arising from or related to any claim or suit by a third party unaffiliated with either party to this Agreement alleging that Client’s access to or use of CheqrPay infringes upon or misappropriates any U.S. patent, copyright, trade secret, proprietary, or other intellectual property right of the third party, provided: (i) Client gives Company prompt notice of any such claim; (ii) Client cooperates with Company in all reasonable respects in connection with the investigation and defense of any such claim; and (ii) Company has sole control of the defense of any action on any such claim and all settlement or compromise negotiations. Client shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at Client’s own cost.
Notwithstanding the foregoing, Company shall have no obligation or liability to Client to the extent any such third-party claim of infringement or other violation of intellectual property rights is caused by the unauthorized or unlawful access to or use of CheqrPay by Client or Authorized Users. The Company shall have no obligation or liability to Client for (i) any unauthorized access to or unlawful use of CheqrPay by Client, Authorized Users, Payers, or third parties; or (ii) any use of CheqrPay by Client, Authorized Users, Payers, or third parties other than in accordance with this Agreement and the Documentation.

9.2. Indemnity Obligations of Client. Client agrees to indemnify, hold harmless and defend Company and its directors, officers, employees and agents (collectively, the “Company Indemnitees”) from and against all and all losses, liabilities, damages, claims, and expenses, including reasonable attorney fees and court costs, of any Payer or third party arising out of or relating in any way to the access to or use of CheqrPay by Client, Authorized Users, or Payers provided that: (i) Company provides prompt notice to Client of any such claim and that any failure to provide such notice shall alter Client’s obligations hereunder only to the extent Client is materially prejudiced thereby; (ii) Company cooperates with Client as reasonably necessary with respect to the investigation and defense of any such claim; and (iii) Client shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise, provided that any final settlement shall require the consent of Company. In all cases, Company shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at Company’s own cost.

10. LIMITATION OF LIABILITY.

10.1. Client acknowledges and agrees that it uses CheqrPay at its own risk and that Company is not responsible for the acts or omissions of Client, Authorized Users, or Payers, except as required by law.

COMPANY SHALL NOT BE LIABLE TO CLIENT FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, GOODWILL, OPPORTUNITY LOSS, OR SIMILAR LOSS OR DAMAGE, WHETHER BASED ON CONTRACT, TORT, OR OTHER THEORY OF LIABILITY, RESULTING FROM THE ABILITY OR INABILITY OF CLIENT, AUTHORIZED USERS, OR PAYERS TO ACCESS OR USE CHEQRPAY.

COMPANY SHALL NOT BE LIABLE FOR: (i) ERRORS IN OR INTERRUPTION OF USE OF CHEQRPAY; (ii) LOSS OR CORRUPTION OF DATA, INCLUDING CLIENT DATA; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; (iv) LOSS OF BUSINESS; OR (v) ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF LOSS OR DAMAGE AS A RESULT OF ANY OF THE FOREGOING.

COMPANY SHALL NOT BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, THAT EXCEEDS THE FEES PAID BY CLIENT FOR THE SERVICES PROVIDED HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE DATE THAT CLIENT PROVIDES NOTICE TO COMPANY OF A CLAIM FOR LOSS OR DAMAGE.

Notwithstanding the foregoing, Client shall not bring any action, whether based on contract, tort, or any other theory of liability, more than two (2) years after the cause of action has accrued.

10.2. Neither the limitations on Company’s liability nor contractual limitation on actions by Client, as described above, shall limit Client’s payment and other obligations under this Agreement.

11. MISCELLANEOUS.

11.1. Recitals. The Recitals set forth herein are true and correct and made part of this Agreement.

11.2. Headings. The headings used herein are for convenience only and are not intended to affect the interpretation of this Agreement.

11.3. Authority. The individual accepting this Agreement on Client’s behalf represents and warrants that he or she has the full right, power, and authority to bind the Company to this Agreement and that Client has taken all necessary action to authorize the acceptance and performance of this Agreement.

11.4. Relationship of the Parties. Company and Client acknowledge and agree that each operates independently of the other. Nothing in this Agreement shall be deemed to create an agency, joint venture, partnership, or employee/employer relationship between the parties for any purpose, including, but not limited to, taxes or employee benefits. Each party shall be solely responsible for the payment of all taxes and insurance related to its business operations and employees.

11.5. Disclaimer. Each party acknowledges that it has not relied on any representation, warranty, or statement made by the other party, except as set forth in this Agreement.

11.6. Assignment. Client may not assign this Agreement or grant any interest in this Agreement without the prior written consent of Company. For purposes of this paragraph, the term “assign” shall include, without limitation, any assignment (by operation of law or otherwise) to any successor or assignee that has acquired all, or substantially all, of Client’s business by means of merger, stock purchase, asset purchase, or otherwise. Any assignment or attempted assignment in violation of this Agreement shall be null and void.

11.7. No Third-Party Beneficiaries. This Agreement is binding upon, and insures solely to the benefit of, the parties hereto and their respective permitted successors and assigns; there are no third-party beneficiaries to this Agreement.

11.8. Notices. All notices under this Agreement shall be in writing and sent to the other party by U.S. mail or overnight courier with a copy by email sent on the same day as the mailed notice. Notices to Company shall be directed as follows:

Cheqr Payment Solutions LLC
202 N Cedar Ave STE #1
Owatonna, MN 55060
Email: support@cheqrpay.com

Notices to Client shall be directed to the street address and email last provided by Client to Company. Notices shall be deemed to have been received upon transmission of the email.

11.9. Waiver. The failure of Company to enforce any provision of this Agreement shall not be construed as a waiver or limitation of Company’s right to later enforce and compel strict compliance with every provision of this Agreement.

11.10. Severability. The provisions of this Agreement are severable. Should any provision of the Agreement be held unlawful or invalid by any competent authority, the remainder of the Agreement shall remain in full force and effect and binding upon the parties hereto.

11.11. Governing Law; Jurisdiction. Any question, claim, or dispute arising from or related to the making, interpretation, or enforcement of this Agreement shall be governed by the laws of the state of Minnesota, without reference to its conflicts of laws principles. Client hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Minnesota with respect to any claim or dispute arising under or in any way related to this Agreement.

11.12. Remedies Not Exclusive. Unless expressly stated otherwise, the remedies in this Agreement shall not be exclusive of any other remedy either party may have against the other party at any time and shall not limit either party’s ability to seek other remedies available under law or in equity. Unless expressly stated otherwise, remedies shall be cumulative, and there shall be no obligation to exercise a particular remedy or to do so in any particular order.

11.13. Cooperation. Each party agrees to take all actions reasonably necessary (including executing agreements and other documents) to give full effect to this Agreement and the transactions facilitated by it.

11.14. Survival. Any provision of this Agreement that expressly, by implication, or necessity, contemplates the performance of obligations under this Agreement including, without limitation the obligations hereunder with respect to Confidential Information and Intellectual Property, shall survive termination of the Agreement and continue in full force and effect.

11.15. Entire Agreement. The Terms, incorporated by reference herein and including this Agreement, set forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersede any and all prior oral and written understandings, quotations, communications and agreements. In the event of a conflict between this Agreement and the other Terms, this Agreement shall control.

11.16. Amendment. This Agreement may not be amended or modified except by a written instrument signed by authorized representatives of both parties. Notwithstanding the foregoing, Company retains the right to revise the terms and conditions of this Agreement at any time, so long as the revisions are reasonable and consistent with industry practices, legal requirements, or the requirements of any third-party suppliers or providers.

CheqrPay
Services Agreement
SCHEDULE A

Client’s access to and use of CheqrPay is subject to the following terms:

1. Setup Fee $0: for Client onboarding, payable on the Effective Date.

2. Transaction Fees:

  Credit Card Payments: 4% + $.30
  ACH Payments: 2%

3. Applicable Taxes: Client shall pay all applicable taxes in addition to fees described herein.

4. Authorized Users: Client shall not designate greater than five Authorized Users unless Company otherwise agrees in writing.

[END SCHEDULE A]