This Merchant Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Merchant"), and Qlane Inc. and its affiliates (collectively, "Qlane"), regarding the Merchant's use of Qlane Merchant' website, currently located at merchant.qlane.app or merchant.quickerlane.com (including the webpages contained or hyperlinked therein and owned or controlled by Qlane, the "Website"), and the Merchant's inclusion in applicable services provided by Qlane via the Website (as determined by Qlane from time to time and in its sole and absolute discretion) including Qlane mobile app, and such other media or media channels, devices, software, or technologies as Qlane may choose from time to time (the "Qlane Services").
MERCHANT MENU
The Merchant agrees to provide, and thereafter maintain and promptly update for so long as the Merchant Agreement is in effect, the true, accurate, current and complete information regarding the Merchant as is requested during the Merchant's sign up process via the Website (the "Sign Up Process").
The Merchant will provide Qlane with the Merchant's current menu, and any updates, changes, or modifications thereto (the "Merchant Menu"), in such format as is requested by Qlane (collectively, the "Marketing Materials") for Qlane' inclusion in the Website, the mobile apps, and the Qlane Services or for any marketing or advertising activities undertaken by Qlane, in its sole and absolute discretion (the "Qlane Marketing Activities"). The Merchant hereby grants to Qlane a non-exclusive, transferable, royalty-free, fully-paid, worldwide license, to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and distribute such Marketing Materials, including any trademarks, trade names, service marks, logos, telephone numbers, and addresses therein, for any purpose, including marketing, commercial, advertising, promotional activities or otherwise, and with a right to sublicense, in connection with the Website, the mobile apps, the Qlane Services, or the Qlane Marketing Activities; and, in connection with Qlane' exercise of the license rights granted by the Merchant, Qlane may prepare derivative works of, or incorporate into other works, all or any portion of the Marketing Materials. The license rights granted hereby will apply to any form, media, or technology now known or hereafter developed. Qlane does not assert any ownership over the Marketing Materials; rather, as between Qlane and the Merchant, and subject to the rights granted to Qlane herein, the Merchant shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
Qlane may perform a variety of marketing activities to promote the Merchant and the Merchant's menu, many of which are described on the Website; provided, however, that all such marketing activities will be determined in Qlane in its sole and absolute discretion and the Website including Qlane mobile apps may be changed, without notice and from time to time, to reflect any such changes.
We do take customer satisfaction very seriously. In addition to Qlane or the Customer contacting the applicable Merchant directly, we ask that you notify Qlane of any complaints or concerns that you receive or know of regarding the Merchants.
ORDERS
The Merchant acknowledges and agrees that the end-user customers of the Qlane’s Services (the "Customers") may place orders with the Merchant, through the Qlane Website, mobile apps, or other media or media channels, devices, software, or technologies as may be included within the Qlane Services, for the food and beverages, and pick-up and/or delivery services in connection therewith, as is set forth on the Merchant Menu (the "Customer Orders"). Upon placement of such a Customer Order, Qlane will send a written confirmation of Customer Orders to the Merchant stating the Customer, items on the menu that Customer is ordering, the price to be paid by Customer for each item, the total amount of the order, Sales Tax collected on behalf of the Merchant, deductions for Coupons, Qlane's commission percentage (the "Commission Percentage") and the applicable credit card merchant payment processing fee, via direct bank deposit or check (the "Payment Processing Fee") and the total sum to be paid to the Merchant for the Customer ORDERS (“Confirmation Order”). The Confirmation Order will be sent to the fax number or email address currently in the Merchant's Website account information or via such other delivery method as Qlane and the Merchant may agree upon and will contains a confirmation code for the Confirmation Order. Upon sending of the Order, Qlane will send either an automatic telephone call (“Phone Confirmation”) or an email requesting the confirmation code to confirm receipt of the Confirmation Order. The Phone Confirmations may be recorded, and the Merchant hereby consents to such recording (and will notify all of its employees and service providers that receive the Phone Confirmations that the call may be recorded). The Merchant agrees to fulfill the Confirmation Order as stated in the Confirmation Order by entering or providing the confirmation code in response to the Phone Confirmation or stating the confirmation code in a reply email to a Confirmation Order.
When the Merchant provides a Customer with the applicable Customer Order (either via pick-up or delivery), the Merchant agrees to have the Customer sign the Qlane Order Receipt Form. The Merchant agrees to keep a copy of each signed Order Receipt Form for at least 3 months following the date of the applicable Customer Order, and the Merchant will promptly deliver to Qlane copies of these executed Order Receipt Form upon request by Qlane.
COUPONS
Coupons are a great way for Merchant to increase sales and promote its Merchant on Qlane. Coupons give Customers with valid Qlane accounts the ability to receive discount credits (not cash) on future purchases from participating Cash Coupon restaurants. The Coupons accrue in the Customer's account until (i) they expire thirty (30) days from the order date, (ii) they are applied against a future order with a participating restaurant or (iii) the Customer's account is closed.
If Merchant wants to participate, Merchant selects the discount percent amount to be applied to the Customers' Coupons in the Merchant's administration account page, which may be modified at any time. When a Customer places a Customer Order, the discount percent is applied against the amount owed by Customer for the Customer Order (the "Discount Amount") and added as a credit provided to Customer in the Customer's Cash Coupon account. The Confirmation Order confirmed by the Merchant will indicate the deducted Discount Amount from the amount otherwise payable to the Merchant for that Confirmation Order. A Subsequent Confirmation Order that is placed with Merchant for that Customer within the next thirty (30) days, the Cash Coupon would not be applied to the Confirmation Order, unless the Merchant remains enrolled in the Cash Coupon program. During the time that Merchant participates in the Coupons promotional, the Discount Amount is applied to each Confirmation Order with Merchant to the extent that Customers have available in their Customer’s Cash Coupon account.
The individual and monthly total Cash Coupon reports are available on the Merchant account page. Merchant may terminate its participation in the Cash Coupon program at any time without penalty or cost on the Merchant's account page. The Coupons have no cash value and are not transferable, unless otherwise required by law.
PAYMENT
Qlane uses the 3rd party payment platforms (the "Payment Platforms"), such as Stripe, to process credit and debit card transactions. By using Payment Platforms you agree to be bound by their Terms of Service.
You expressly understand and agree that Qlane shall not be liable for any payments and monetary transactions that occur through Your use of the Service. You expressly understand and agree that all payments and monetary transactions are handled by Payment Platforms. You agree that Qlane shall not be liable for any issues regarding financial and monetary transactions between You and any other party, including Payment Platforms.
You are responsible for all transactions (one-time, recurring, and refunds) processed through the Service and/or Payment Platforms. Qlane is not liable for loss or damage from errant or invalid transactions processed with Your Payment Platforms account. This includes transactions that were not processed due to a network communication error, or any other reason. If You process a transaction, it is Your responsibility to verify that the transaction was successfully processed.
You understand that Qlane uses the Payment Platforms API to run the Service and that the Payment Platforms API is subject to change at any time and such changes may adversely affect the Service. You understand and agree to not hold Qlane liable for any adverse affects that actions (whether intentional or unintentional) on the part of Payment Platforms may cause to Your Payment Platforms account, or Your business.
You must not process stolen credit cards, or unauthorized credit cards through Payment Platforms.
TAXES
Notwithstanding anything to the contrary herein, the Merchant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Confirmation Orders sent to the Merchant, the Merchant’s use of the Website and Qlane Services. Qlane may charge and collect sales tax from Customers as an agent on behalf of the Merchant in accordance with instructions provided by the Merchant or applicable law; and, in which case, Qlane will collect such sales tax solely as an agent on behalf of the Merchant and shall pay such amount collected to the Merchant (or as may be otherwise required by applicable law). The Merchant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities. Sales tax shall include any sales, use, privilege, gross receipts, restaurant, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Merchant.
MERCHANT REPRESENTATIONS, WARRANTS, AND COVENANTS
The Merchant hereby represents, warrants, and covenants that:
- a. the prices charged to Customers through the Qlane Services will not be higher than those charged to any customers that place orders directly with the Merchant;
- b. it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Merchant's operation of its business.
- c. it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Qlane' then-current policies;
- d. it bears all risks to persons and property arising from its (or its employees' or service providers') contact therewith, and waives, and agrees to indemnify Qlane for, any and all claims relating thereto against Qlane.
- e. the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Merchant's Marketing Materials pursuant to the license rights granted to Qlane by this Agreement does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party; and
- f. The Merchant's Marketing Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.
QLANE CONTENT
Excluding the Marketing Materials, all of the content on the Website, mobile apps, and included in the Qlane Services (including without limitation, all source code, databases, functionality, software, website and mobile app designs, audio, video, text, photographs and graphics, the "Qlane Content"), including the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Qlane, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All Qlane graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Qlane in the U.S. and/or other countries. Qlane' trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Qlane. The Merchant agrees not to circumvent, disable or otherwise interfere with any security related features of the Website, mobile apps or the Qlane Services, or any other features that seeks to either prevent or restrict the use or copying of any Qlane Content or enforce limitations on use of the Website, mobile apps, the Qlane Services, or the Qlane Content therein.
CUSTOMER DATA
"Customer Data" means any and all identifiable information about purchasers generated or collected by Qlane or the Merchant, including, but not limited to, purchasers' name, shipping addresses, email addresses, phone numbers, and purchaser preferences and tendencies; and the Merchant agrees that the Merchant will only use the Customer Data in fulfilling the applicable Customer Order and in complying with the Merchant's obligations in this Agreement, and the Merchant agrees that Customer Data will not be used to enhance any file or list of the Merchant or any third party. The Merchant represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. The Merchant agrees that it will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling the applicable Customer Order. The Merchant (and any other persons to whom the Merchant provides any Customer Data) will implement and comply with reasonable security measures in protecting, handling, and securing the Customer Data. If any Customer Data is collected by the Merchant (or otherwise on its behalf), the Merchant shall ensure that it (and any applicable third parties) adopt, post, and processes the Customer Data in conformity with an appropriate and customary privacy policy.
For purposes of this Agreement, the restrictions set forth herein on the Merchant's use of Customer Data do not apply to: (a) data from any customer who was a customer of Merchant prior to the Merchant using the Website, Mobile Apps or the Qlane Services, but only with respect to data that was so previously provided to the Merchant by such customer; or (b) data supplied by a customer directly to the Merchant who becomes a customer of the Merchant and who explicitly opts in to receive communications from the Merchant for the purposes for which such Customer Data will be used by Merchant; and, provided in all cases, that the Merchant handles and uses such Customer Data in compliance with applicable Laws and the Merchant's posted privacy policy.
TERM AND TERMINATION
This Agreement is effective upon the Merchant's initial Sign Up Process and will remain in full force and effect for so long as the Merchant is included on the Website as part of the Qlane Services. Either Qlane and the Merchant may terminate this Agreement any time, for any reason, by providing written notice to the other. The termination is effective upon the other party receiving such notice. Qlane will, as soon as practicable following such termination (or notice thereof, if terminated by the Merchant), remove the Merchant from inclusion in the Qlane Services and the Website, including its mobile apps. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination.
Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Confirmation Orders prior to such termination. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
DISPUTES
If there is a dispute between the Merchant and a Customer, the Merchant understands and agrees that Qlane is under no obligation with respect thereto, and the Merchant, to the fullest extent permitted by law, hereby releases Qlane and its affiliates, and each of their respective officers, directors, employees, service providers, affiliates, agents, and successors from, and agrees to indemnify each of the foregoing for any losses incurred in connection with, any and all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Qlane Services.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement, the Website, mobile apps, or the Qlane Services shall be governed and construed by the law of the State of Delaware, excluding such state's conflicts of law rules. Any legal action of whatever nature by or against Qlane arising out of or related in any respect to this Agreement, the Website, mobile apps or the Qlane Services shall be brought solely in the applicable federal or state courts located in or with jurisdiction over Delaware, and the Merchant hereby agrees to such venue as the sole and exclusive venue for the resolution of any disputes with Qlane subject, however, to the right of Qlane, at Qlane' sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. The Merchant hereby consents to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by the Merchant related in any way to this Agreement, the Website, mobile apps, or the Qlane Services be instituted more than two (2) years after the cause of action first arose.
DISCLAIMERS
TO THE FULLEST EXTENT PERMITTED BY LAW, QLANE AND ITS AFFILITES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANGERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, MOBILE APPS, AND THE QLANE SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. QLANE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S OR ITS MOBILE APPS OR THE QLANE SERVICES' CONTENT OR THE CONTENT OF ANY OTHER WEBSITES LINKED TO THE WEBSITE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE MERCHANT'S ACCESS TO AND USE OF THE WEBSITE, MOBILE APPS AND/OR THE QLANE SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF QLANE' SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, MOBILE APPS, OR OTHERWISE WITH RESPECT TO THE QLANE SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE , MOBILE APPS, OR THE QLANE SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, MOBILE APPS, SOCIAL MEDIA OR THE QLANE SERVICES.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL QLANE OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, AFFILIATES, OR AGENTS BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM THE QLANE SERVICES, OR ITS WEBSITE, INCLUDING ITS MOBILE APPS, EVEN IF QLANE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, QLANE' LIABILITY TO MERCHANT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE MERCHANT TO QLANE FOR THE QLANE SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION FIRST ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE MERCHANT, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO THE MERCHANT, AND THE MERCHANT MAY HAVE ADDITIONAL RIGHTS.
IF THE MERCHANT IS A DELAWARE RESIDENT, THE MERCHANT WAIVES DELAWARE CIVIL CODE SECTION 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."
INDEMNITY
The Merchant hereby agrees to defend, indemnify and hold Qlane and its affiliates, and each of their respective directors, officers, employees, services providers, and agents (collectively, the "Qlane Indemnitees") harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any party due to or arising out of the Merchant's Marketing Materials, the Website, mobile apps, the Qlane Services, or any breach by the Merchant of this Agreement. Notwithstanding the foregoing, Qlane reserves the right, at the Merchant's expense, to assume the exclusive defense and control of any matter for which the Merchant may be required to indemnify an Qlane Indemnitee, and the Merchant agree to cooperate, at the Merchant's expense, with Qlane' defense of such claims. Qlane will use reasonable efforts to notify the Merchant of any such claim, action, or proceeding which may be subject to this indemnification.
NOTICES
Except as explicitly stated otherwise, any notices given to Qlane shall be given by email to Info@theqlane.com. Any notices given to the Merchant shall be to the email address provided during the Sign Up Process (or as such information may be updated via the Website by Merchant from time to time) provided, however, that Qlane may also give notices by U.S. mail.
Additionally, the Merchant may contact Qlane at the address and telephone number provided below (as may be updated by Qlane from time to time) with respect to any complaint regarding the Qlane Services or to receive further information regarding the Qlane Services.
Qlane Inc, 1250 Borregas Avenue, #152, Sunnyvale, California 94089
MISCELLANEOUS
This Agreement constitutes the entire agreement between the Merchant and Qlane regarding the use of the Qlane Services provided, further, that the Merchant's use of and access to the Website, mobile apps and the Qlane Services shall also be subject to the Term of Use. The failure of Qlane to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement and the Merchant's account with Qlane (including the Website, mobile apps, and the Qlane Services) may not be assigned by the Merchant without Qlane' express written consent. Qlane may assign any or all of its rights and obligations to others at any time. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
MODIFICATIONS
Qlane may modify this Agreement from time to time, and any such changes will (i) be reflected on the Website, (ii) be effective 30 calendar days after being so posted on the Website, (iii) not apply retroactively, and (iv) not apply to any disputes arising prior to the effective date of such change. The Merchant agrees to be bound to any such changes and understands the importance of regularly reviewing this Agreement as updated on the Website to keeping the Merchant's contact information (as indicated in the Merchant's account details via the Website) current.
Notwithstanding anything to the contrary herein, Qlane reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Website, mobile apps and the Qlane Services (or any part thereof) with or without notice. The Merchant agrees that Qlane shall have no liability to the Merchant or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Website, mobile apps or the Qlane Services.
Last updated in July 2020