These Terms of Service (the "Agreement") are made and entered into by and between you and Qwil PBC, a Delaware public benefit corporation ("Qwil"). This Agreement contains the terms and conditions that govern the use of, and the terms and conditions upon which Qwil will provide to you certain services as described herein (collectively the "Service"), which are provided through Qwil’s website and/or mobile application operated by Qwil.
By accessing and/or using the Service, you are consenting to be bound by this Agreement. If you are agreeing to these terms on behalf of a business, you represent and warrant that you have authority to bind that business to this Agreement, and your agreement to these terms will be treated as the agreement of the business. In that event, "you" and "your" refer to that business.
Qwil collects and helps you track amounts owed to you for work performed from third parties for/to whom you or your agents or representatives have provided goods or services, such amounts may include unpaid earnings, accounts receivable or other forms of value that are owed to you by such third parties (collectively, "Virtual Assets"). You hereby assign all such Virtual Assets to Qwil and authorize Qwil to collect them on your behalf and in your name; including, without limitation:
Qwil does not charge for this collection service and agrees to pay such amounts collected on your behalf less any fees or deductions agreed by you in connection with your use of the Service as provided herein.
Through the Service Qwil may offer you the ability to obtain access to Virtual Assets prior to collection thereof by Qwil by using the "Cash Out" feature within the Service ("Cash Out"). Fees for using Cash Out will be displayed to you within Qwil’s website and/or mobile application and all Virtual Assets you Cash Out and any fees associated with Cash Out will be deducted from amounts paid to you upon collection of Virtual Assets by Qwil from such third parties. You shall not, without Qwil’s prior consent:
Upon collection by you of any Virtual Asset owned by Qwil you shall immediately notify Qwil of such collection and remit payment to Qwil within one (1) business day of such collection.
You represent and warrant to Qwil that:
You will indemnify and hold Qwil harmless from any claims by any other owner of the account of any Virtual Asset.
Qwil is not responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) that result from your failure to maintain a balance or available credit in the bank account that is sufficient to fund all payments you initiate.
Qwil may limit the total number of Virtual Assets that you can Cash Out at any given time or over a period of time. We may refuse to permit you to Cash Out for any reason and we may refuse to make any subsequent payment for Virtual Assets for as long as we determine to be necessary or appropriate.
You grant Qwil a continuing first priority security interest in and to such Virtual Assets. Upon request, and provided you are not in default hereunder, Qwil will subordinate its lien other than to the Virtual Assets in connection with other institutional financing obtained by you. Notwithstanding the creation of the above security interest, the relationship of the parties shall be that of purchaser and seller of accounts, and not that of lender and borrower. You shall execute and deliver to Qwil such documents and instruments, including, without limitation, UCC financing statements, as Qwil may request from time to time in order to evidence and perfect its security interest in any collateral securing your obligations hereunder.
In order to allow you to use certain Services, we may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. These inquiries may include asking you for further information, requiring you to provide a taxpayer identification number, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying information you provide against third party databases or through other sources. If you do not provide this information or we cannot verify your identity, we can refuse to allow you to use the Services.
You agree not to: (i) use the Service other than as authorized in this Agreement; (ii) use any device, software, or routine that interferes with any application, function, or use of the Service, or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) resell, sublicense, time-share, or otherwise share the Service with any third party; (iv) frame or mirror the Service; (v) decompile, disassemble or reverse-engineer the underlying software or application that is part of the Service or otherwise attempt to derive its source code; (vi) use the Service either directly or indirectly to support any activity that is illegal; (vi) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) authorize any third parties to do any of the above.
Through the Service, you may be able to elect to receive services from partners of Qwil (each such service, a "Third Party Service", and each such partner, a "Partner"). Qwil is not responsible for Third Party Services or any material, information or results available through Third Party Services and the applicable Partners may require you to agree to terms and conditions or agreements with respect to their provision of the Third Party Services to you. You are solely responsible for, and assume all risk arising from, your election and receipt of any Third Party Service. If you elect to receive a Third Party Service, you authorize Qwil to submit to the applicable Partner any and all documents and information about you, your business and your business’ independent contractors, necessary for such Partner to provide the Third Party Service to you, including without limitation your bank account information and any required federal, state or local powers of attorney, and any additional information, such as personal information, requested by such Partner that you have provided to Qwil in connection with this Agreement and your receipt of the Service (collectively, the "Shared Information"). You are responsible for the accuracy of all Shared Information you provide to us and approve to be submitted to Partners. You represent and warrant that you have all the rights in and to any Shared Information necessary to provide Shared Information to Qwil, and that Qwil’s use of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state or federal laws, regulations, orders or rules. You agree that by electing to receive a Third Party Service, and consenting and authorizing Qwil to submit your Shared Information to a Partner, you have waived and released any claim against Qwil arising out of a Partner’s use of your Shared Information. In no event will Qwil be liable to you or any third party for any direct, indirect, consequential, special, or punitive loss or damages regardless of whether such damages are based on contract, tort (including negligence), strict liability, or any other theory or form of action or whether Qwil knew or should have known of the likelihood of such damages in any circumstances, arising out of or related to a Partner’s use of your Shared Information.
You will designate and authorize either yourself and/or one or more individual users of the Service with authority to act on your behalf and to bind you and/or your business (each an "Administrator"), who may access the Service by entering a confidential user ID and password created by following the instructions provided via the Service and which will entitle them, depending on their designation and permissions given, to have authority to access, review, modify and/or provide approvals on your behalf.
You will, and will cause your authorized users to, take reasonable steps to maintain the confidentiality of the authorization procedures and the user IDs and passwords and related instructions provided by Qwil. If you believe or suspect that any such user IDs and passwords or related instructions have been known or accessed by unauthorized persons, you will immediately notify Qwil in a manner affording Qwil a reasonable opportunity to act on the information, and you acknowledge that failure to immediately notify Qwil could result in loss of funds and unauthorized access to your confidential information. Qwil reserves the right to prevent access to the Service should Qwil have reason to believe the confidentiality of the security procedure or the confidentiality of the user IDs and passwords have been compromised. You are responsible for any actions taken on the Service by your Administrator and/or any other authorized users, and for any transactions resulting from your failure to maintain the confidentiality of your account. You agree that the provision of a user ID and password by you, your Administrator and/or any other authorized users, will have the same effect as providing a written signature authorizing electronic payments, filings and other actions on the Service.
Qwil may permit, but shall not be obligated to permit your Administrator or other a designated representative to communicate with Qwil by electronic mail or other means about the Service. You acknowledge that any such electronic mail communication or other means of communication will be made available for your benefit and convenience, that any information about your independent contractors or their earnings, Entries or other instructions communicated to Qwil will be deemed to have been fully authorized by you and you shall be fully responsible for the accuracy of such information including, without limitation, any penalties and/or interest arising therefrom; and that, notwithstanding such deemed authorization, Qwil may in its sole discretion refuse to accept or act upon any such instructions.
You are responsible for your own compliance with applicable tax and regulatory law notwithstanding any Services Qwil may offer.
Qwil owns all worldwide right, title and interest in and to the Service and the website, applications and software platform that Qwil uses to provide the Service ( "Qwil IP"). This Agreement does not convey any proprietary interest in or to any Qwil IP or rights of entitlement to the use thereof except as expressly set forth herein. You acknowledge and agree that the fees paid pursuant to this Agreement apply only to the use of the Service by you. Any feedback, comments and suggestions you may provide for improvements to the Service ( "Feedback") is given entirely voluntary and Qwil will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind.
By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content to Qwil through the Service, you are licensing that content to Qwil solely for the purpose of providing the Service. Qwil may use and store the content for the purpose of providing the Service to you. By submitting this content to Qwil, you represent that you are entitled to submit it to Qwil for use for this purpose, without any obligation by Qwil to pay any fees or other limitations.
Your use of the Service is entirely at your own risk. Qwil is not in the business of providing legal, tax, financial, accounting, employment, or other professional services or advice. You should consult a professional trained in those areas if you need such assistance. The Service is provided "AS IS" and on an "AS AVAILABLE" basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, QWIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, NON-INFRINGEMENT, OR THE ACCURACY, RELIABILITY, QUALITY OF ANY INFORMATION OR CONTENT IN OR LINKED TO THE SERVICE. QWIL DOES NOT WARRANT THAT THE SERVICE WILL BE COMPLETELY SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. If the exclusions for any implied warranties do not apply to you, any implied warranties are limited to 60 days from the date of delivery of the Service.
The termination of the Service or this Agreement will not affect your or Qwil’s rights with respect to transactions which occurred before termination. Upon any termination of the Service, your right to access and use the Service will automatically terminate, and you may not continue to access or use the Service. Qwil will have no liability for any costs, losses, damages, or liabilities arising out of or related to Qwil’s termination of this Agreement. Sections 4 through 14 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded.
You agree to indemnify, defend and hold Qwil and its agents, contractors, services providers and affiliates (each, an "Indemnified Party"), harmless against all liabilities, claims, demands, damages, losses, fines, judgments, disputes, costs, charges and expenses (including, without limitation, reasonable attorneys’ fees incurred in connection with such claims) made by you or others resulting from, arising out of or related to (i) any acts or omissions by you, your Administrator and/or any other authorized users, or (ii) Qwil’s or any other Indemnified Party’s use of or reliance on information and data furnished by you or resulting from activities that Qwil or any other Indemnified Party undertakes at your request, or at the request of anyone Qwil or any other Indemnified Party believes in good faith to be your authorized agent, in providing the Service or otherwise in connection with this Agreement. In no event will Qwil’s or any other Indemnified Party’s liability for any act or omission relating to the Service exceed the total charge for services provided for the one (1) month period immediately preceding such act or omission by Qwil. IN NO EVENT WILL QWIL OR ANY OTHER INDEMNIFIED PARTY HAVE LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER QWIL OR ANY OTHER INDEMNIFIED PARTY KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES.
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof. You irrevocably submit (for yourself and in respect of your property and business) to the jurisdiction of any state or federal court sitting in San Francisco County, California, in any action or proceeding arising out of, or relating to, this Agreement and acknowledge and agree that all claims in respect of the action or proceeding may be heard and determined in any such court. You also agree not to bring any action or proceeding arising out of, or relating to, this Agreement in any other court. You waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought.
Notwithstanding any other provision in this Agreement, if either you or Qwil have any unresolvable dispute, controversy or claim, whether founded in contract, tort, statutory or common law, concerning, arising out of or relating to this Agreement or the Service, including any claim regarding the applicability, interpretation, scope or validity of this arbitration clause and/or this Agreement (a "Claim") and upon the demand of either party, it will be settled by individual (not class or class-wide) binding arbitration administered by the American Arbitration Association (AAA) in accordance with the then current Commercial Financial Disputes Arbitration Rules, including any expedited procedures. A demand that a Claim be submitted to arbitration may be made before the initiation of any legal proceeding or within ninety (90) days following the service of a complaint, third-party complaint, cross-claim or counterclaim and if a party in a pending legal proceeding demands a Claim to be submitted to arbitration, the party initiating the action will immediately dismiss the legal proceeding and file the claim in arbitration. Arbitration hearings will be held in a mutually agreeable location or if no such agreement can be reached, the city where the dispute occurred. A single arbitrator will be appointed by the AAA and shall be a practicing attorney or retired judge having experience with and knowledge of online commerce law. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including attorneys’ fees and expert witness fees. A judgment on the award may be entered by any court having jurisdiction. The parties agree and acknowledge that this agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement.
Qwil reserves the right to change the terms, conditions, and services at any time, which will be effective when posted on the Service or when you are notified by other means. Qwil will try to, but is not obligated to, provide thirty (30) days prior notice of any such material change. If you do not wish to be bound by such change, you may discontinue using and terminate the Service before the change becomes effective. Your continued use of the Service after the change becomes effective, indicates your agreement to the change.
This Agreement constitutes the entire agreement between Qwil and you regarding the Service and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided herein. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. You may not assign this Agreement without the prior written consent of Qwil. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.