Simpler Giving in the Palm of Your Hand

Qgiv Terms of Service

This Qgiv Terms of Service Agreement ("Agreement") is made and entered into as of the date of Your acceptance of this Agreement within the Qgiv Signup System (the “Effective Date”) by and between Qgiv, Inc. a Florida corporation whose principal place of business is 53 Lake Morton Drive, Suite 110, Lakeland, FL 33801 ("QGIV" or "Qgiv"), and the company listed in the Qgiv Signup System ("Organization") (each a "Party", collectively the "Parties").

WHEREAS, QGIV provides to organizations online management software for the acceptance of online donations and event registration and tracking, as well as integration with payment gateway services provided by various Merchant Providers and Processors to process online credit card and ACH transactions, as well as a variety of value added services, as more fully described herein and at www.qgiv.com (the "Site"), as such descriptions may be changed by QGIV from time to time (the "Qgiv Services"). In order for You, on behalf of Your Organization (individually or collectively, "You" or "Your"), to obtain or continue using those certain Qgiv Services, You must agree to and accept the terms and conditions of the Agreement. The Agreement sets out the terms and conditions under which You may utilize the Qgiv Services. Please read this Agreement carefully. It is important that You understand that You represent that You have reviewed and understand the Agreement and agree to be legally bound by all its terms and conditions; and that upon Your acceptance of this Agreement, by continuing to use any of the Qgiv Services and/or accepting this Agreement, it becomes a legally binding contract.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

  • Your Capacity and Related Matters.

    By accepting the terms and conditions of this Agreement, You represent and warrant that (a) You are 18 years of age or older, (b) all information You have provided to QGIV is true and correct in all respects, and (c) You will update QGIV by email with any changes to information You have previously supplied. You further represent and warrant that You have the legal authority to accept the terms and conditions of this Agreement on behalf of Your Organization and that such acceptance will be binding on Your Organization. QGIV reserves its right, in its sole discretion, to refuse to provide You with any Qgiv Service and terminate this Agreement, with or without notice. Words and phrases with initial letters capitalized and not otherwise defined herein shall have the meaning set forth in Section 13.17.

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  • Undertakings of QGIV.

    • QGIV Grant.

      QGIV hereby grants You a nonexclusive, royalty-free right, during the Term, to use the Qgiv Services, subject to the restrictions, terms and conditions herein and any other restrictions, terms and conditions communicated by QGIV to You, only as necessary to perform hereunder and for no other purpose.

    • Qgiv Services.

      QGIV shall provide the Qgiv Services to You in all material respects in accordance with the terms and conditions of this Agreement and consistent with all applicable laws and regulations.

    • ID and Password.

      In connection with Your rights described in Section 2.1 and 2.2, QGIV will issue to You, or permit You to continue using the ID and password given to You by QGIV, to enable You and/or Your employees and agents to access Your portal account and use the Qgiv Services.

    • Relationship to Referred Processors and Gateways.

      QGIV may provide you an account with a third party merchant account processor, a third party online gateway service, and/or a third party ACH processor that allow for acceptance of credit card and ACH transactions, and/or the communication between Qgiv Services and your Processor. QGIV is not responsible for any actions or negligence on behalf of QGIV Referred Processors and Gateways and/or related parties.

    • Customer Service.

      During the Term, if You are current in payment of all fees owing to QGIV and are otherwise not in default under this Agreement, QGIV shall provide customer service to You, as set forth in the Support Services section of the QGIV Web site at the URL www.qgiv.com.

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  • Your Responsibilities.

    • ID and Password.

      You will restrict access to such ID, password, and account to Your employees and agents as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the account is aware of and otherwise complies with all applicable provisions of this Agreement regarding such use and access. You are solely responsible for maintaining adequate security and control of any and all IDs, passwords, or any other codes that are issued to You by QGIV for purposes of giving You access to the Qgiv Services. QGIV shall be entitled to rely on information it receives from You and may assume that all such information was transmitted by or on behalf of You. You shall comply with all QGIV recommendations and notices regarding the security of your ID, password and portal account.

    • Compliance with Law and QGIV Guidelines.

      In connection with the exercise of Your rights and obligations under this Agreement (including, without limitation, any related to individual privacy), You will comply, at Your own expense, with all laws, policies, guidelines, regulations, ordinances, rules applicable to You, Your business or the Transactions and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof, including, without limitation, the rules promulgated by the Credit Card Associations, the electronic communication rules of the CANSPAM Act, and the privacy requirements of the Gramm Leach Bliley Act and regulations thereof. In addition, You shall comply with all the current policies, procedures and guidelines of QGIV governing the Qgiv Services, including, without limitation, QGIV’s Acceptable Use Policy and Privacy Policy, both incorporated herein by reference. The QGIV Acceptable Use Policy and Privacy Policy are available at {{ route('use-policy') }} and {{ route('privacy') }}, respectively. QGIV reserves the right to amend, modify or change such policies, procedures, and guidelines at any time and will notify You, through an electronic communication, such as an e-newsletter or e-mail, of such changes as soon as is reasonably possible. You shall not use the Qgiv Services in any manner, or in furtherance of any activity that may cause QGIV to be subject to investigation, prosecution, or legal action.

    • Limitations.

      Your use of the Qgiv Services shall be restricted to a single entity and You shall not submit transaction data to QGIV or otherwise process orders on behalf of any other entity or individual. Any attempt by You to use the Qgiv Services for more than one entity or on behalf of another entity or individual shall result in an obligation to pay to QGIV additional fees and charges and/or QGIV's revocation of Your right to use the Qgiv Services and termination of this Agreement.

    • Relationship to QGIV Referred Processors and Gateways.

      QGIV may provide you an account with a third party merchant account processor, a third party online gateway service, and/or a third party ACH processor that allow for acceptance of credit card and ACH transactions, and/or the communication between Qgiv Services and your Processor. In addition to your agreement with the QGIV Referred Processors and Gateways, the terms and conditions of this Agreement govern your use and QGIV's provision of the Qgiv Services. You expressly acknowledge and agree that QGIV may share information about You and Your account with its QGIV Referred Processors and Gateways.

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  • Data Privacy and Security.

    • Organization Obligations.

      You are solely responsible for the security of data residing on server(s) owned or operated by You, or a third party designated by You (e.g., a Web hosting company, processor, or other service provider). You shall comply with all applicable laws and regulations governing the security, collection, retention and use by You of financial information, including credit cards, and all other personally identifiable customer information. You agree to provide notice to your customers on Your Web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.

    • QGIV Obligations.

      QGIV may collect, and retain information and data collected from You and your customers (including data associated with the Qgiv Services) in accordance with QGIV's Privacy Policy. You hereby consent, as a condition of Your enrollment in and use of the Qgiv Services, to the collection, use, processing and transfer of personal data as described in this Section 4.2 and QGIV's Privacy Policy. You are solely responsible for compiling and retaining permanent records of all Transactions and Data for Your reference. Except as otherwise provided herein, at no time shall QGIV have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or Data collected or processed by QGIV. You understand that QGIV may collect and hold personal or non-public information about You and Your customers, including but not limited to: Your name, address, telephone number, e-mail address, social security number and/or tax identification number for the purpose of considering eligibility for the Qgiv Services as well as Your customers' names, mailing & shipping addresses, email addresses, phone number, dollar amount of purchases, types of purchases and descriptions of purchases for the purpose of providing You with the Qgiv Services (collectively, “Data”). You also understand and agree that QGIV may obtain various consumer reports regarding You from third parties, run a credit check, report unpaid collection issues to credit bureaus, and/or obtain other personal or credit information about You. You further understand and agree that QGIV, its subsidiaries, suppliers and/or their agents/contractors may transfer Data among themselves as necessary for the purpose of the provision and management of the Qgiv Services, and that QGIV may further transfer Data to third parties assisting QGIV in evaluating Your eligibility for, provision of, administration and management of the Qgiv Services, as well as under circumstances described in QGIV's Privacy Policy, as may be modified from time to time by QGIV.

    • Data Security.

      You agree that, except as may be reasonably necessary in the ordinary course of business to carry out the activities to be performed by You hereunder or required by law, You will not disclose any consumer or customer information to any third party. While QGIV uses commercially reasonable efforts to safeguard Data and Transaction data transmitted while using the QGIV Service, QGIV does not warrant that Data and Transaction data will be transported without unauthorized interception or modification or that Data or Transaction data will not be accessed or compromised by unauthorized third parties (e.g., hackers). You agree that you will comply with all QGIV security protocols and security advisories in effect during the term of this Agreement. You are solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed by QGIV associated with Your account and verifying that all corresponding funds are accurately processed. You acknowledge that QGIV shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Your account, Data or Transaction data. QGIV’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of QGIV is limited pursuant to Section 10, hereof. You warrant that You have taken such precautions as are necessary to ensure that Your server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Your system is breached and an unauthorized third party has access to or has accessed Your User ID and/or Password data, You shall notify QGIV promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.

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  • Fees.

    You shall pay to QGIV the service fees set forth in the Fee Schedule and ACH Debit Authorization, which is hereby incorporated into the terms of this Agreement by reference. Notwithstanding anything to the contrary and if agreed upon by the Parties, QGIV Referred Processors and Gateways may charge, bill, and collect such fees from You, in the amounts stated in and in accordance with the terms and conditions of the agreement between You and such QGIV Referred Processors and Gateways. If Your relationship with a QGIV Referred Processor or Gateway expires or terminates and such QGIV Referred Processor or Gateway was billing You for certain fees, then You may continue using the Qgiv Services with another Processor or Gateway supported by the Qgiv Services.

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  • Payment Terms.

    • QGIV Bills You.

      • Billing Terms.

        Billing shall begin on the Effective Date. You will remit any and all amounts payable to QGIV on a monthly basis, and the first payment shall be due on the first day of the month immediately following the Effective Date. Unless otherwise specified herein, fees and payments for any subsequent time periods shall be due on the first day of the month. You hereby authorize QGIV to initiate transaction entries to Your depository account or, if QGIV is unable to collect owing amounts from Your depository account, to bill You, the numbers of which are to be provided to QGIV by You on or before the Effective Date, for any and all amounts owing to QGIV under this Agreement. Entries initiated to or from Your depository account will be in accordance with the rules of the National Automated Clearing House Association and/or any other regulatory body or agency having jurisdiction over the subject matter hereof. This authorization is to remain in full force and effect until QGIV has received written notification from You of Your termination in such time and manner as to afford QGIV and Your depository institution a reasonable opportunity to act on it. If Your depository account number changes, You shall promptly provide QGIV with written notice of the change and the new number(s). If You fail to provide QGIV with accurate current depository account, QGIV may discontinue its performance of the Qgiv Services for You, without liability, until such information is provided to QGIV or termination of this Agreement. You acknowledge that any change in account information may not be effective until the billing month following the second month in which QGIV receives such notice.

      • Non-Sufficient Fund Fee, Late Payment Fee, and Service Reactivation Fee.

        You shall pay to QGIV a “Non-Sufficient Fund Fee” of $35 US dollars, each time QGIV attempts to debit Your depository account for any amounts owing under this Agreement and receives a non-sufficient fund message from Your bank. Any amounts due to QGIV under this Agreement and not paid when due will be subject to a finance charge equal to one and one-half percent (1.5%) or the highest rate allowable by law, determined and compounded daily from the date due until the date paid. Payment of such finance charges will not excuse or cure any breach or default for late payment. QGIV may accept any check or payment from You without prejudice to its rights to recover the balance due or to pursue any other right or remedy. If You do not pay owing amounts on or before the first business day following the tenth (10th) day of the month, You will be subject to a late payment fee of $35 US dollars per occurence. If You have not paid all owing amounts on or before the first business day following the tenth (10th) day of the month in which they were due, QGIV may, in its sole discretion, discontinue its performance of the Qgiv Services for You and/or immediately terminate this Agreement. Unless QGIV has already terminated this Agreement, if You subsequently pay in full all owing fees and charges, within six (6) months of the date QGIV deactivated your account, QGIV agrees to restore Your access to the Qgiv Services upon QGIV's receipt of such payment. You agree to pay all costs and expenses of whatever nature, including attorneys' fees and costs, incurred by or on behalf of QGIV in connection with the collection of any unpaid charges and fees.

    • QGIV Referred Processor or Gateway Bills You.

      Notwithstanding Section 6.1, if You are to be billed by a QGIV Referred Processor or Gateway, You shall pay the QGIV Referred Processor or Gateway in accordance with the terms mutually agreed upon between You and such QGIV Referred Processor or Gateway.

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  • Term.

    This Agreement shall commence on the date You accept this Agreement and remain in full force and effect until terminated pursuant to Section 8.

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  • Termination and Suspension.

    • Termination by Organization.

      You may immediately terminate this Agreement, at any time and for any reason, with or without cause, upon written notice to QGIV.

    • Termination by QGIV.

      QGIV may immediately terminate this Agreement and/or Your access to the Qgiv Services, at any time and for any reason, with or without cause, including, without limitation, violation of the Acceptable Use Policy. Termination shall be accompanied by a written notice to You, sent electronically or otherwise.

    • Termination or Suspension of You by a QGIV Referred Processor or Gateway.

      If QGIV receives notice from such QGIV Referred Processor or Gateway that it has terminated or suspended its relationship with You, QGIV may suspend and/or terminate Your right to access and use the Qgiv Services and/or this Agreement without notice and without liability. In addition, QGIV may suspend and/or terminate the Qgiv Services and/or this Agreement without notice and without liability upon receipt of notice from Your Processor or acquiring bank that You are no longer entitled to send an authorization message, settlement message, or other message or payment data related to a credit card transaction to Your Processor.

    • Effect of Termination.

      Upon termination of the Term for any reason, all rights and obligations of the Parties under this Agreement shall be extinguished, except that: (a) all payment obligations hereunder shall survive such termination; and (b) the rights and obligations of the Parties that expressly survive termination, including, without limitation under Sections 8.4, 9.1, 10, 11, 12, and 13, all of which shall survive such termination.

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  • Intellectual Property and Confidentiality.

    • QGIV.

      The Parties agree that QGIV owns and retains all right, title and interest in and to the QGIV Marks, Qgiv Services and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to You or any other entity or person under this Agreement. You will not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Qgiv Services or related technology.

    • QGIV Marks License.

      Subject to the terms and conditions contained herein, QGIV hereby grants to You the right to use, reproduce, publish, perform and display the QGIV and Qgiv Marks: (a) on Your Web site in connection with Your offering of online donations and event registrations to Your customers; and (b) in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about or related to any of the Qgiv Services.

    • Your Marks License.

      Subject to the terms and conditions contained herein, You hereby grant to QGIV and its affiliates the right to use, reproduce, publish, perform and display Your Marks solely in connection with the development, use, reproduction, modification, adaptation, publication, display and performance of the Qgiv services offered and/or accessible through Your Web site, specifically as such use relates to each and every Qgiv donation form hosted on Qgiv Services in connection with this Agreement.

    • Use of Trademarks.

      Each Party shall strictly comply with all standards with respect to the other Party's Trademarks contained herein or which may be furnished by such Party from time to time. Further, neither Party shall create a combination mark consisting of one or more Trademarks of each Party. All uses of the other Party's Trademarks shall insure to the benefit of the Party owning such Trademark. Each Party hereby acknowledges and agrees that, as between the Parties, the other Party is the owner of the Trademarks identified as its Trademarks in any written notice provided to the other Party pursuant to this Agreement. Either Party may update or change the list of Trademarks usable by the other Party hereunder at any time by written notice to the other Party.

    • Use the Appropriate ® or ™ Symbol.

      You must reproduce any QGIV and Qgiv Marks without modification, including the exact reproduction of any proprietary markings or legends and including the appropriate ® or ™ symbol at the first and most prominent reference, or as soon as practicable thereafter.

    • Provide Appropriate Trademark Attribution.

      You must include a statement of ownership when displaying or reproducing any QGIV and Qgiv Marks. The statement should read: "Qgiv and the Qgiv logo [or any other applicable mark] are trademarks or registered trademarks of Qgiv, Inc." If it is not feasible to include the attribution statement, it is acceptable to use a general-purpose attribution statement in a form such the following: "All other trademarks are the property of their respective owners."

    • Trademarks and Domain Registration.

      You shall not use, register or attempt to register any: (a) QGIV and Qgiv Marks; or (b) trademarks or domain names that are confusingly similar to any of the QGIV and Qgiv Marks or the Domain.

    • Trademark Restrictions.

      You shall not (i) use the QGIV and Qgiv Marks except as expressly authorized in this Agreement; (ii) take any actions inconsistent with QGIV’s ownership of the QGIV and Qgiv Marks and any associated registrations, or attack the validity of the QGIV and Qgiv Marks, its ownership thereof, or any of the terms and conditions of this Agreement; (iii) use the QGIV and Qgiv Marks in any manner that would indicate You are using such QGIV and Qgiv Marks other than as a licensee of QGIV; nor (iv) assist any third party do any of the same.

    • Confidential Information.

      You agree to hold all information communicated by QGIV to You, whether written or oral or in any media whatsoever (the “Confidential Information”), in strict confidence, not to disclose, distribute or disseminate the Confidential Information or information derived there from in any way to any third party and not to use the Confidential Information for Your own benefit or the benefit of others, or for any purpose except in connection with the purposes of this Agreement. You agree to use Your best efforts to protect all Confidential Information and in any event, to take precautions at least as great as those taken to protect Your own information of a similar nature. You agree that this Agreement is considered Confidential Information. Upon QGIV’s request, You will return all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information. You acknowledge that breach of this provision may result in irreparable harm to QGIV, for which money damages may be an insufficient remedy, and therefore QGIV will be entitled to seek injunctive relief to enforce the provisions of this section.

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  • Representations and Warranties.

    • Mutual Warranties.

      Each Party represents and warrants to the other that (a) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; (b) no authorization or approval from any third party is required in connection with such Party's execution, delivery or performance of this Agreement, (c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, (d) the Party's obligations under this Agreement do not violate any law or breach any other agreement to which such Party is bound; and (e) it has all right, title or interest, or valid license to use, its respective Marks, and that its grant of rights associated therewith do not violate any intellectual property or other proprietary rights of any third party.

    • QGIV Warranty.

      • WARRANTY.

        DURING THE EFFECTIVE TERM OF THIS AGREEMENT, QGIV REPRESENTS AND WARRANTS THAT THE QGIV SERVICES WILL CONFORM IN ALL MATERIAL RESPECTS TO THE APPLICABLE DOCUMENTATION MADE AVAILABLE TO YOU BY QGIV. YOU MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY REGARDING THE QGIV SERVICES BY ANY THIRD PARTY IN CONTRAVENTION OF THE FOREGOING STATEMENTS. THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. QGIV DOES NOT REPRESENT OR WARRANT THAT THE QGIV SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. YOU EXPRESSLY ACKNOWLEDGE THAT THE QGIV SERVICES ARE COMPUTER NETWORK-BASED SERVICES, WHICH MAY BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. IN SUCH AN EVENT AND SUBJECT TO THE TERMS HEREOF, QGIV SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY MATERIAL INTERRUPTIONS AND WILL PROVIDE ADJUSTMENTS, REPAIRS AND REPLACEMENTS, WITHIN ITS CAPACITY, THAT ARE CONFIDENTIAL AND NECESSARY TO ENABLE THE QGIV SERVICES TO PERFORM THEIR INTENDED FUNCTIONS IN A REASONABLE MANNER. YOU ACKNOWLEDGE THAT QGIV DOES NOT WARRANT THAT SUCH EFFORTS WILL BE SUCCESSFUL. IF QGIV'S EFFORTS ARE NOT SUCCESSFUL, YOU MAY TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.1. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND QGIV'S SOLE LIABILITY, IN THE EVENT OF INTERRUPTION, OUTAGE OR OTHER DELAY OCCURRENCES IN THE QGIV SERVICES. QGIV DOES NOT WARRANT THE SERVICES OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, THE QGIV REFERRED PROCESSOR, BANK OR ANY THIRD PARTY PROCESSOR.

      • DISCLAIMER.

        EXCEPT AS EXPRESSLY SET FORTHIN SECTION 10.2.1, QGIV SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE QGIV SERVICES, OR OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT QGIV SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD OR CHARGEBACKS.

    • Your Warranties.

      You represent and warrant to QGIV that:

      • All representations and statements made by You in this Agreement, or in any other document relating hereto by You or on Your behalf, are true, accurate and complete in all material respects. You hereby authorize QGIV to investigate and confirm the information submitted by You herein. For this purpose, QGIV may utilize credit bureau reporting agencies and/or its own agents.

      • You are engaged in a lawful business that includes the sale of products and/or services, and are duly licensed to conduct such business under the laws of all jurisdictions in which You conduct business; and

      • You will comply with all laws, policies, guidelines, regulations, ordinances or rules applicable to You, Your business or the Transactions, including, without limitation: (i) the Credit Card Association rules and regulations; (ii) the Gramm Leach Bliley Act; (iii) any regulatory body or agency having jurisdiction over the subject matter hereof; (iv) QGIV’s Acceptable Use Policy and Privacy Policy; (v) the CAN-SPAM Act; and (vi) the then current policies, procedures, and guidelines of QGIV governing the Qgiv Services.

    • Third Party Programs.

      You acknowledge that the Qgiv Services are designed for use with certain third-Party programs, including, without limitation, certain Internet browsers and software programs developed and owned by third parties. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. QGIV makes no warranty, express or implied, with regard to any such third-Party software.

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  • LIMITATIONS OF LIABILITY AND DISCLAIMERS.

    • LIMITATIONS.

      UNDER NO CIRCUMSTANCES: (I) WILL QGIV OR ANY OF ITS PARENTS, AFFILIATES OR VENDORS (OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, OR ITS PARENTS, AFFILIATES OR VENDORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) WILL QGIV’S TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY QGIV PRODUCTS OR SERVICES, EXCEED THE AGGREGATE COMPENSATION QGIV RECEIVED FOR PROVIDING THE QGIV SERVICES TO YOU DURING THE THIRTY DAYS PRECEDING THE DATE ON WHICH THE CLAIM AROSE OR $1,000, WHICHEVER IS LESS.

    • DISCLAIMER.

      YOU EXPRESSLY AGREE THAT QGIV SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER ARISING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR MERCHANT ACCOUNT; (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR PAYMENT PORTAL ACCOUNT; (III) DISRUPTION OF QGIV SERVICES, SYSTEMS, SERVER OR WEB SITE BY ANY MEANS, INCLUDING WITHOUT LIMITATION, DDOS ATTACKS, SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER TECHNOLOGY; (IV) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, A MERCHANT SERVICE PROVIDER, PAYMENT PROCESSOR OR BANK; OR (V) UNAUTHORIZED ACCESS TO (A) DATA, CUSTOMER DATA (INCLUDING CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION), TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO QGIV, YOU OR ANY THIRD PARTY AND (B) THE QGIV SERVICES, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH; OR (VI) THE LIMITATION OF THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR SERVICE;

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  • Indemnification.


      • Indemnification by You.

        You shall defend, indemnify, and hold harmless QGIV and its affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses), arising out of or relating to: (a) any breach or alleged breach by You of any representation, warranty, or obligation of You set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by You or any of your employees, agents or customers; (c) the reliability, accuracy, or legitimacy of payment data or purchase orders submitted by You to QGIV; (d) payment card transactions submitted by You to QGIV and rejected by QGIV or an issuing bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from a Merchant Fault; (f) any alleged or actual violation by You of any applicable laws, regulations or rules of (i) the Credit Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof; or (g) any violation of QGIV’s Acceptable Use Policy or Privacy Policy. In the event You cause fines and/or penalties to be charged to QGIV by the Credit Card Associations or any other entity, you agree to immediately reimburse QGIV for said fines or penalties.

      • Indemnification by QGIV.

        QGIV shall defend, indemnify and hold harmless You and Your affiliates, parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) arising out of or relating to any breach or alleged breach by QGIV of any material representation, warranty, or obligation of QGIV set forth in this Agreement, or any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by QGIV or any of its employees or agents.

    • Indemnification Procedure.

      The obligations of You and QGIV, as applicable (“Indemnitor”) under this Section 12 to defend, indemnify and hold harmless Qgiv and You, respectively and as applicable (“Indemnitee”) shall be subject to the following: (a) Indemnitee shall provide Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Indemnitor of its obligations under this Section 12 to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) Indemnitor shall have control of the defense and of all negotiations for settlement of such claim or suit; and (c) Indemnitee shall cooperate with Indemnitor in the defense or settlement of any such claim or suit, provided that Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Indemnitor. Subject to clause (b) above, Indemnitee may participate in the defense of any such claim or suit at its own expense. Indemnitor shall not, without the consent of the Indemnitee, enter into any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice Indemnitee in any way.

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  • General Provisions.

    • Publicity.

      The Parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither Party will have any obligation to do so. In addition, neither Party will issue such publicity and general marketing communications concerning this relationship or the Qgiv Services without the prior written consent of the other Party (not to be unreasonably withheld or delayed).

    • Non-exclusivity.

      Each Party acknowledges and agrees that the rights granted to the other Party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either Party from participating in similar business arrangements as those described herein.

    • Relationship of the Parties.

      The Parties are independent contractors and nothing in this Agreement shall make them joint venturers, partners, employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise. You further recognize that if you contracted for the Qgiv Services with a QGIV Referred Processor, such provider is an authorized reseller of the Qgiv Services only and is not a joint venturer, partner, or agent of QGIV.

    • Notices.

      All notices to You shall be given electronically, sent to the electronic mail address provided by or for You during registration for the Qgiv Services and/or posted in the Announcement section of Your portal account. Service termination notices to QGIV shall be sent to Qgiv, Inc., 53 Lake Morton Dr. Suite 110, Lakeland, Florida 33801 or to (863) 687-1828 (fax), Attention: Service Termination. Such written notices will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail notices shall be deemed given the next business day following the date delivered or upon the date posted in the Annoucement section of Your portal account, as applicable.

    • Amendment; Modifications.

      No amendment, modification, or change to any provision of this Agreement, nor consent to any departure by either Party therefrom, will in any event be effective unless the same will be in writing and accepted by the other Party, and then such consent will be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, QGIV may amend this Agreement at any time upon written or electronic notice to You of not less than ten (10) days prior to the effective date of such amendment; provided that the addition or change of service fees, will become effective upon at least thirty (30) days' notice. If You do not agree to such amendments, your sole remedy is to immediately terminate this Agreement upon written notice to QGIV.

    • Severability; Headings.

      If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.

    • Governing Law; Jurisdiction.

      This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Florida, without reference or giving effect to its conflicts of law principles. You hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Polk County, and the middle district of Florida with respect to any action, claim or proceeding arising out of or related to this Agreement and agree not to commence or prosecute any such action, claim or proceeding other than in such courts, except as otherwise provided in Section 13.12 below.

    • Waiver.

      The failure of any Party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either Party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

    • Assignment.

      You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your obligations under this Agreement without the prior written consent of QGIV, including in the case of a merger. Qgiv will have the right to assign this Agreement to its subsidiaries, Affiliates or to any other person and be released from liability to You upon notice of such assignment to You, provided the assignee is financially responsible and capable of performing under the Agreement and expressly assumes Qgiv’s obligations. You will notify Qgiv in advance in the event of any sale of Your business or change in control or general management.

    • Successors and Assignees.

      This Agreement is binding upon the respective, permitted successors in interest, assignees, executors, administrators and heirs of the Parties.

    • Force Majeure.

      Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Qgiv Services by a third party by any means, including without limitation, DDoS attacks, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Qgiv Services, or other catastrophes or any other occurrences which are beyond such Parties' reasonable control (each a “Force Majeure Event”), provided that the Party delayed will provide the other Party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.

    • Litigation of Disputes.

      Neither Party will institute a proceeding in any court or administrative agency to resolve a dispute between the Parties before that Party has sought to resolve the dispute through direct negotiation with the other Party. If the dispute is not resolved after three weeks of direct negotiation, the parties will attempt to resolve the dispute through mediation. If the parties do not promptly agree upon a mediator, either Party may request the then chief judge of the Tenth Judicial Circuit of Florida to appoint a Circuit Civil Mediator certified by the Supreme Court of Florida. If the mediator is unable to facilitate a settlement of the dispute within a reasonable period of time, as determined by the mediator, the mediator shall issue a written statement to the Parties to that effect and the aggrieved Party may then seek relief through the courts or administratively. Nothing in this section precludes the Parties from agreeing to submit the dispute for resolution by arbitration under conditions and procedures to which they agree in advance.

    • Entire Agreement.

      This Agreement together with all of QGIV's policies referenced herein sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement. You acknowledge that this Agreement reflects an informed, voluntary allocation between QGIV and You of all risks (both known and unknown) associated with the Qgiv Services. In the event of a conflict between the Acceptable Use Policy and this Agreement, the latter shall govern.

    • Gender and Number. Time.

      As used herein and wherever necessary or appropriate and without distinction, the masculine gender shall include the feminine and the neuter, the singular shall include the plural, and vice-versa. Time, and timely perfomance, is of the essence.

    • Pass Through of Fines and Penalties.

      You shall be fully compliant with Credit Card Association rules and regulations as amended from time to time, by the Credit Card Associations. In the event Your systems are breached and cause fines and/or penalties to be charged to Qgiv by the Credit Card Associations, You agree to immediately reimburse Qgiv for said fines or penalties. You also agree to immediately reimburse Qgiv for Credit Card Association fines or penalties caused by You for any reason.

    • Qgiv Sponsored Merchants.

      Qgiv has the ability to setup certain organizations with a Sponsored Merchant Account as a Sponsored Merchant to take Transactions on behalf of the organization. To the extent that You/the Organization are a Qgiv Sponsored Merchant, You/the Organization agree to the following terms and conditions with respect to the use of Qgiv’s Sponsored Merchant service:

      Qgiv operates as a payment faciliator and uses Vantiv as its merchant processor and acquirer in order to provide you with a Sponsored Merchant Account. Vantiv can be contacted using the contact information on their website (www.vantiv.com) or through support@vantiv.com.

      Qgiv’s processor will credit Your bank account for any Transactions You receive within 48 business hours of settlement of Your Transactions. Qgiv will charge fees to You as outlined in Section 6 of this Agreement for using its Sponsored Merchant service and will also charge You fees when cardholders dispute Transactions. Said fees will be debited from a Your bank account at the time they are encountered by Qgiv and You agree to pay any and all such fees.

      • Prohibited Activities.

        To accept payments through Qgiv’s Sponsored Merchant Account You confirm, acknowledge and agree that You will not accept payments in connection with any of the following activities, items or services:

        • Any illegal act
        • Adult content websites
        • Airline
        • Collection Agency – merchant may not accept a card as payment for a dishonored check or for an item deemed uncollectible by another merchant.
        • Cruise Line
        • Credit Counseling
        • Credit protection or ID protection services
        • Debt Elimination or Reduction Services
        • Distressed Property Sales and Marketing.
        • Drugs, alcohol, or drug paraphernalia, or items that may represent these uses
        • Gambling Establishments MCC 7995
        • No card present Tobacco sales
        • No card present Pharmaceuticals
        • Multi-level marketing programs
        • Rebate or upsell programs
        • Timeshare resale’s and related marketing
        • Any merchant selling goods or services that represent a violation of any law
        • Any merchant operating outside the United States
        • Sub-Merchant submitting sales for payment that resulted from another commercial entity providing goods or services to the cardholder
        • A merchant may not accept a card at a scrip-dispensing terminal
        • Buyer clubs/membership clubs
        • MCC 5966 – Outbound telemarketing
        • MCC 5967 – Inbound telemarketing (videotext services)
        • MCC 5968 – Direct Marketing: Continuity or Subscription services

        If Qgiv determines that You have received funds resulting from fraud or a restricted/prohibited activity listed in this Agreement, those funds may be frozen and/or seized from Your bank account.

        In addition, if Qgiv reasonably suspects that Your Sponsored Merchant Account has been used for an unauthorized, illegal, or criminal purpose, You give Qgiv express authorization to share information about You, Your Sponsored Merchant Account, Your access to the Qgiv Services, and any of Your Transactions with law enforcement agencies or authorities, including without limitation, upon request of or by law enforcement agencies or authorities.

      • Qgiv's Sponsored Merchant Account.

        Qgiv’s Sponsored Merchant service allows You to accept payments, including card-based payments. Qgiv is not a bank, a money transmitter, or a money services business ("MSB") and Qgiv does not offer banking or MSB services as defined by the United States Department of Treasury.

        As a merchant payment processor, Qgiv processes payments Sponsored Merchants receive from their customers or donors. This means that Qgiv collects, analyzes and relays information generated in connection with such payments.

        In order to serve in this role, Qgiv has entered into agreements with payment card networks, other processors and banks. These third parties require that some of Qgiv’s users enter into an agreement with Qgiv's payment processor of record. If You are such a user, Qgiv may provide You with a separate agreement during registration or at some other time. If You do not complete said separate agreement, Qgiv may suspend or terminate Your Sponsored Merchant Account.

      • Underwriting & Risk.

        Qgiv may share some or all of the information You provide with Qgiv’s processor and other partners. At any time, Qgiv, its processor or its other partners may conclude that You will not be permitted to use Qgiv.

        By accepting the terms of this Agreement and by being a Qgiv Sponsored Merchant, You authorize Qgiv to request identity verifying information about the Organization, You, Your business, and/or Your customers, including a consumer report that contains Your name and address. Qgiv may periodically obtain additional reports to determine whether You continue to meet the requirements of this Agreement.

        You agree that Qgiv is permitted to contact and share information about You and your application (including whether You are approved or declined), and Your Qgiv Sponsored Merchant Account with banks and other financial institutions. This includes sharing information (a) about Your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the service, (c) to create and update their customer records about You and to assist them in better serving You, and (d) to conduct Qgiv's risk management process.

        In addition, You agree that Qgiv may ask for additional information at any time, and may decline or reverse Transactions at any time based on the risk any such transactions pose to You, Your customers and/or to Qgiv.

        Qgiv reserves the right to limit or restrict Transaction size or volume at any time. If You would like to increase your limits, please contact Qgiv’s Customer Support. Upon receiving such a request, Qgiv will conduct a review of your Sponsored Merchant Account, and decide whether to lift or remove these limits. Qgiv will consider a variety of factors in making such a decision and will make this determination in its sole and absolute discretion.

      • Your Liability for Chargebacks.

        The amount of a Transaction may be reversed or charged back to your Qgiv Sponsored Merchant Account (a "Chargeback"). For example, but without limitation, a Chargeback may arise if the Transaction (a) is disputed by a donor, (b) is reversed for any reason by the network, Qgiv’s processor, or a purchaser's or Qgiv’s financial institution, (c) was not authorized or Qgiv has any reason to believe that the Transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement. You are responsible for all Chargebacks, whether or not the Chargeback complies with network rules. In addition, Qgiv will charge a $15 Chargeback fee for all such Chargebacks.

      • Qgiv’s Collection Rights for Chargebacks.

        For any Transaction that results in a Chargeback, Qgiv may withhold the Chargeback amount in a reserve. Qgiv may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the Association (hereinafter defined) or Qgiv’s processor from Your bank account, any proceeds due to You, Your bank account, or other payment instrument registered with Qgiv. "Association" shall mean and refer to the network of credit card and debit card issuing and acquiring banks that process credit and debit cards for a specific brand (i.e., the four major brands in the United States are Visa, MasterCard, American Express and Discover).

        If You have pending Chargebacks, Qgiv may delay payouts from your Qgiv Sponsored Merchant Account.

        Further, if Qgiv reasonably believes that a Chargeback is likely with respect to any Transaction, Qgiv may withhold the amount of the potential Chargeback from payments otherwise due to You under this Agreement until such time that: (a) a Chargeback is assessed due to a customer's complaint, in which case Qgiv will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the Transaction has expired; or (c) Qgiv determines that a Chargeback on the Transaction will not occur.

        If Qgiv is unable to recover funds related to a Chargeback for which You are liable, You will pay Qgiv the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation, attorneys' fees and costs and any other legal expenses, incurred by or on behalf of Qgiv in connection with the collection of all Qgiv Sponsored Merchant Account deficit balances unpaid by You.

        If Qgiv determines that You are incurring an excessive amount of Chargebacks, Qgiv may establish controls or conditions governing your Qgiv Sponsored Merchant Account, including without limitation, by (a) establishing new processing fees, (b) creating a reserve in an amount reasonably determined by Qgiv to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Sponsored Merchant service.

        You agree to assist Qgiv when requested, at Your expense, to investigate any of Your transactions processed through the Sponsored Merchant service. To that end, You permit Qgiv to share information about a Chargeback with the purchaser, the purchaser's financial institution, and Your financial institution in order to investigate and/or mediate a Chargeback. Qgiv will request necessary information from You to contest the Chargeback and You shall timely provide any such requested information. If the Chargeback is contested successfully, Qgiv will release the reserved funds to You. If a Chargeback dispute is not resolved in Your favor by the Association or issuing bank or You choose not to contest the Chargeback, Qgiv may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge and agree that Your failure to assist Qgiv in a timely manner when investigating a transaction, including providing necessary documentation within seven (7) days of Qgiv’s request, may result in an irreversible Chargeback. Qgiv reserves the right, upon notice to You, to charge a fee for mediating and/or investigating Chargeback disputes.

      • Qgiv’s Set-off Rights.

        To the extent permitted by law, Qgiv may set off against the balances or any amounts due to You for any obligation You owe Qgiv under this Agreement, including without limitation any Chargebacks. All fees are deducted first from the transferred or collected funds and thereafter deducted from Your bank account.

        Qgiv may charge or debit a payment instrument registered in Your Qgiv Sponsored Merchant Account. Your failure to fully pay amounts that You owe Qgiv on demand shall be a breach of this Agreement. You will be liable for Qgiv’s costs associated with collection in addition to the amount owed, including without limitation, attorneys' fees, costs and expenses, collection agency fees, and any applicable interest.

    • Definitions.

      "Affiliate" - means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person.

      "Credit Card Association" - for the purposes of this Agreement means Visa U.S.A., Inc., Visa International, Inc., MasterCard International, Inc., and any other credit or debit card issuing company.

      "Domain" – for the purposes of this Agreement, means the Web site operated by or for QGIV under the URL .

      "Fee Schedule" – a list of fees and charges to be paid by You to QGIV. The Fee Schedule must be accepted an approved by You before your obtain access to the Qgiv Services.

      "Organization Portal" – means the user interface available to Organization at .

      "QGIV Referred Processors & Gateways" - for purposes of this Agreement, a QGIV Referred Processor or Gateway shall mean any third party whom QGIV may refer for the processing and settlement of credit card or ACH transactions.

      "Processor" - for purposes of this Agreement, a Processor shall mean a credit card processor that accepts Transactions from QGIV and processes Transactions for You.

      "Trademark(s)" – means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.

      "Transaction(s)" - for purposes of this Agreement, Transaction means any credit card authorization, credit, ticket only, batch settlement, decline transaction or other related transaction, completed or submitted under Your account to QGIV.

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