1. Payment Processing Services.
The Platform that You are using (“Customer“) has contracted with Assembly Payments [Pty. Ltd.], (together with our affiliates, subsidiaries and divisions, collectively “Assembly” or “We” or “Us“) to facilitate the payment process for Goods, Assets or Services Purchased and Sold via Customer’s online platform (the “Platform“).
- If you are a Subscriber, you hereby authorise and instruct Assembly in accordance with the terms and conditions of this Agreement, to collect and make payment of your Subscription Transaction to the Customer;
- If you are a Platform Seller, you hereby authorise and instruct Assembly in accordance with the terms and conditions of this Agreement, to act as your payment facilitator and agent in connection with the sale of Goods, Assets or Services by you as Platform Seller to Platform Buyers, who are introduced to you as Platform Seller via the Platform; or
- If you are a Platform Buyer, who intends to buy Goods, Assets or Services on the Platform from a Platform Seller, you hereby agree that the terms of this Agreement will apply to your use of the Payment Processing Services provided by Assembly.
For the avoidance of doubt, Customer is not a party to this End User Agreement (“Agreement“) for the provision and/or use of the Payment Processing Services by You. This Agreement is entered into directly between either the Subscriber and Assembly, Platform Buyer and Assembly, or the Platform Seller and Assembly, as the case may be. The contractual relationship between You and Customer shall be governed by the separate Platform User Agreement.
- “Account” means a depository account with a financial institution designated by You for the payment or receipt of monies pursuant to this Agreement.
- “Cardholder” refers to the Buyer using a credit card or a debit card for payment.
- “Card Network/Card Brand” means the network that powers credit card transactions. This includes, without limitation, Visa, MasterCard, American Express and Discover.
- “Custodian Account” means funds received on behalf of Buyers, which will be co-mingled and held with funds belonging to other persons in one or more For Benefit Of (FBO) accounts at NAB Trustees (or successor Trustee as Assembly may determine) on Customer’s behalf and or Platform Sellers behalf and for the benefit of the Customer and or platform seller.
- “Customers.” Online marketplace entities or Platforms that contract Assembly as their point of sale payment processor.
- “Goods, Assets and/or Services” means any goods, services or other property of any kind whatsoever (real, tangible or intangible) or any rights with respect thereto.
- “Losses” means any and all actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise.
- “Payment Processing Services” means the internet based Payment Processing Services provided by Assembly, acting as a payments facilitator and/or escrow agent, which services are intended to facilitate the completion of a Transaction.
- “Platform Buyer” means a third party end user of Customer who Purchases, or offers, attempts or agrees to Purchase, any Goods, Assets or Services from You via the Platform.
- “Platform Seller” means a third-party end user of Customer who Sells, or offers, attempts or agrees to Sell, any Goods, Assets and/or Services via the Platform. Without limiting the generality of the foregoing, the term Platform Seller shall include, but shall not be limited to, any service provider, seller of products, lessor, licensor, landlord, retailer, vendor, supplier, dealer, direct payment payee, biller, contractor or merchant.
- “Platform Transaction”means any Transaction involving the Purchase and Sale of Goods, Assets or Services by Platform Buyer to Platform Seller(s) using the Platform.
- “Purchase” shall be interpreted broadly to mean purchase, buy, obtain, lease, license or otherwise acquire or assume.
- “Representatives” means a person’s affiliates, and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns.
- “Sell” shall be interpreted broadly to mean to sell, transfer, lease, license, hypothecate or otherwise assign or dispose of.
- “Subscriber” means a person who Purchases, or offers, attempts or agrees to Purchase any Goods, Assets or Services, directly from Customer or its affiliates.
- “Subscriber Fee” means individually the fee payable by the Subscriber to the Customer under a Subscription Transaction.
- “Subscription Transaction” means a transaction between Customer, on the one hand, and Subscriber on the other hand, whereby Customer allows the Subscriber the opportunity to become a Platform Seller, and pursuant thereto access to the Platform for the purposes of selling, or offering, attempting or agreeing to Sell, any Goods, Assets and/or Services via the Platform to a Platform Buyer.
- “Third Party Service Provider” means a separate business working with Assembly to facilitate payment processing as well as preventing fraud and non-compliance with applicable laws.
- “Transaction” means the Purchase and Sale of Goods, Assets or Services via the Platform, and can either be a Platform Transaction or a Subscription Transaction.
- “Transaction Funds Reversals” are payment reversals that can refund to a Platform Buyer or Subscriber up to the full amount of the Transaction Funds. This term includes “chargebacks”‚Äîclaims that Platform Buyers or Subscribers may file to dispute a payment or identify any unauthorized transactions made directly with the Platform Buyer’s or Subscriber’s issuing bank. This term also includes transactions disputed or reversed by a Card Network, Assembly’s processor, or a Customer’s financial institution. This term also includes payment reversals due to an unauthorized, unlawful, suspicious, contractually Prohibited Transaction.
- “You” or “Your” is a reference to a Platform Seller, Platform Buyer, and/or a Subscriber, as the context may require.
3. Required Information
a) Platform Sellers. In order to provide Payment Processing Services to the Platform Seller, Assembly is required to validate Platform Seller’s identity with Third Party Service Providers. This is not a hard credit check (i.e. a credit check that might impact Your credit score negatively). Platform Seller consents to Assembly carrying out such a validation and will, at minimum, supply the following information to Assembly:
- Full legal name;
- Email address;
- Current address;
- Month and year of birth;
- Social security number or tax number;
- Bank account details;
- Government Issued ID.
If You are operating a registered business (Partnership, Corporation, Pty Ltd, Pty Lte, Partnership, Trust, Sole Trader, LLC, S Corp, C Corp, LLP, LP, etc.), You will also need to provide Your:
- Full business name;
- Business address;
- Business EIN or ABN.
- Business phone;
By accepting this Agreement, Platform Seller authorizes Assembly to share, retrieve and verify information about Platform Seller through properly accredited Third Party Service Providers, but only to the extent required to provide Payment Processing Services to Platform Seller. Platform Seller acknowledges that this may include history of past addresses and other personal data (e.g. IP addresses). Platform Seller acknowledges that Assembly and its Third Party Service Provider(s) are situated internationally, and consent to the transfer of Platform Seller’s personal information to them for the purposes of providing the Payment Processing Services. Assembly may require that Platform Seller’s information be updated from time to time.
b) Buyers/Subscribers. In order for Buyers or Subscribers to utilize the Payment Processing Services, they will need to provide the following information to Assembly:
- Full legal name;
- Current address;
- Phone number;
- Email Address;
- Payment/Bank account details.
Any additional information as required from time to time by Assembly or Customer from time to time for the purposes of the Payment Processing Services (for example, identity verification or payment verification in certain circumstances).
c) Protection of Legitimate Interests. We will take appropriate measures to ensure that Subscriber’s, Platform Buyer’s and Platform Seller’s legitimate interests during the validation process set out in this Section 3 are protected, in that:
- You will be provided with an opportunity to make representations about the outcome of the validation process; and
- Assembly will provide You with sufficient information about the underlying logic of the processing of the information relating to You, in order to enable You to make such representations.
a) By entering Your payment information and making use of the Payment Processing Services You authorize Assembly:
- If You are a Platform Seller: to initiate credit entries to Your Account to receive payment in full or in part of the purchase price of any Goods, Assets or Services purchased from You by Platform Buyer via the Platform (the “Purchase Price“);
- If You are a Subscriber: to initiate credit entries to Customer’s Account in order for Customer to receive payment of the Verification Fee and/or the Subscription Fee;
- If You are a Platform Buyer: to release any Transaction Funds held by Assembly on Your behalf to the Platform Seller, upon Your instruction to Assembly to do so;
- To debit Your Account to discharge Your obligations pursuant to this Agreement and/or the Customer’s Platform User Agreement, which obligations may include transaction fees payable to Assembly and/or Customer as provided for in Section 7 below (a “Transaction Fee“); and
- To make such payments by direct debit.
b) Such payments may be made by direct debit or ACH via the respective Direct Debit/ACH Agreement attached as an exhibit hereto or otherwise as provided by Assembly.
c) If a Platform Buyer authorizes the release funds to a Platform Seller to complete a Transaction, the Platform Buyer explicitly agrees that the Goods, Assets and/or Services relating to the Transaction are as described and/or have been provided. For the avoidance of doubt, once this occurs, Platform Buyer waives any rights to file a Payment Claim, as defined below, for that Transaction.
6. Funds Held for Benefit of Seller
Assembly maintains a ledger that properly delineates the Seller for whom the funds are earmarked. Assembly has sole discretion over the establishment and maintenance of any Custodian Accounts. Assembly will hold such funds separate from Assembly’s corporate funds and will not (i) use the funds for corporate purposes, (ii) make the funds available to creditors in the event of Assembly’s bankruptcy or for any other purpose, and (iii) knowingly permit Assembly’s creditors to seize said funds. You will not receive interest or any other earnings on funds in Custodial Accounts. You irrevocably assign to Us all rights and legal interests to any interest or other earnings that accrue or are attributable to any of Your funds in a Custodian Account.
a)Assembly charges a Transaction Fee for each Transaction. The Transaction Fee will be paid by Customer on Your behalf out of the brokerage fee payable by You to Customer pursuant to the Customer’s Platform User Agreement (the “Brokerage Fee“). You hereby authorize and direct Assembly to deduct the Brokerage Fee from the Purchase Price and remit such amount to Customer. Once paid, Transaction Fees are non-refundable.
b)Assembly is not responsible for withholding or payment of any sales, use, personal property or other governmental tax or levy imposed on any Goods, Assets or Services purchased or sold through the Platform or otherwise arising from any Transaction.
8. Prohibited Transactions
You agree You will not use the Payment Processing Services for, or otherwise accept payments in connection with the following businesses, business activities or business practices (“Prohibited Transactions”): (1) embassies, foreign consulates or other foreign governments, (2) door-to-door sales, (3) offering substantial rebates or special incentives to the Cardholder subsequent to the original purchase, (4) negative response marketing, (5) engaging in deceptive marketing practices, (6) sharing Cardholder’s data with another merchant for payment of up-sell or cross-sell product or service, (7) evading Card Network’s chargeback monitoring programs, (8) engaging in any form of licensed or unlicensed aggregation or factoring, (9) airlines, (10) age restricted products or services, (11) bail bonds, (12) bankruptcy lawyers, (13) bidding fee auctions, (14) collection agencies, (15) chain letters, (16) check cashing, wire transfers or money orders, (17) counterfeit goods (e.g. knock-offs, imitations, bootlegs) (18) currency exchanges or dealers, (19) firms selling business opportunities, investment opportunities, mortgage consulting or reduction, credit counselling, repair or protection or real estate purchases with no money down, (20) credit card and identity theft protection, (21) cruise lines, (22) essay mills, (23) flea markets (firms/individuals operating from a booth, on a part time basis with no lease or telephone availability; whether indoors or outdoors), (24) drug paraphernalia, (25) extended warranties, (26) fortune tellers, (27) “get rich quick” schemes; (28) gambling (including but not limited to lotteries, Internet gaming, contests, sweepstakes, or offering of prizes as an inducement to purchase goods or services), (29) sports forecasting or odds making, (30) illegal products or services, (31) mail-order brides, (32) marijuana dispensaries and related businesses, (33) money transmitters or money service businesses, (34) multi-level marketing or pyramid schemes, (35) online, mail, or telephone order pharmacies or pharmacy referral services, (36) prepaid phone cards, phone services or cell phones, (37) pseudo pharmaceuticals, (38) quasi-cash or stored value, (39) securities brokers, (40) sexually-oriented or pornographic products or services, (41) shipping or forwarding brokers, (42) substances designed to mimic illegal drugs, (43) telemarketing, (44) timeshares, (45) online, mail, or telephone order tobacco or e-cigarette sales, (46) weapons and munitions (47) virtual currency or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world, or (48) products/services intended to inflict or promote revenge, harassment, and other forms of abuse, humiliation and intimidation. Assembly may update this list from time to time, as necessary, without notice to You.
9. Right to Reject a Transaction
Assembly reserves the absolute right, in its sole discretion, to reject, refuse to complete, or unwind any Transaction that Assembly has any reason to believe is unauthorized or made by someone other than the Buyer, may violate any law, rule or regulation, or if Assembly has reasonable cause not to honor it.
10. Transaction Funds Reversals and Disputes
“Transaction Funds Reversals” are payment reversals that can refund to a Platform Buyer or Subscriber up to the full amount of the Transaction Funds. This term includes “chargebacks”‚Äîclaims that Platform Buyers or Subscribers may file to dispute a payment or identify any unauthorized transactions made directly with the Platform Buyer’s or Subscriber’s issuing bank. This term also includes transactions disputed or reversed by a Card Network, Assembly’s processor, or a Customer’s financial institution. This term also includes payment reversals due to an unauthorized, unlawful, suspicious, or contractually Prohibited Transaction in violation of Section 8 (Prohibited Transactions). These complaints are made directly with the Buyer’s issuing bank and may result in a reversal that refunds up to the full Purchase Price of the Transaction back to the Buyer. If a Transaction is disputed or reversed by a Card Network, Assembly’s processor, or a Seller’s financial institution, or the Transaction was not authorized, unlawful, suspicious, or in violation of Section 8 (Prohibited Transactions), the Seller associated with the Transaction Funds Reversal shall be fully liable for the Transaction Funds Reversal amount. For any Transaction resulting in a Transaction Funds Reversal, Assembly may take any action reasonably necessary to recover the funds, including withholding the Transaction Funds Reversal in a reserve or deducting the amount of the Transaction Funds Reversal (and any associated fees or fines from Seller’s Account or other funding source registered with Assembly), including without limitation by direct debit or ACH. Assembly assumes no liability for Transaction Funds Reversals or for any tooling or assistance Assembly provides to prevent or fight Transaction Funds Reversals.
11. Fraud or Excessive Chargebacks
Seller agrees to work with Assembly to immediately address any fraud or chargeback issue. Seller also understands and agrees that Assembly may delay or reject Transactions that Assembly deems potentially fraudulent. Seller also agrees to allow Assembly to share information about a Chargeback with the payer and the payer’s Sellers, or the financial institution where Seller’s Account is held, to investigate or otherwise resolve a chargeback.
12. Set Off/Security Interest
To the extent allowed by applicable law, Seller grants to Assembly a security interest and right of set-off in any account created through Seller’s use of the Platform including any reserve or any pending payouts that Assembly has received for processing pursuant to this Agreement. Seller agrees to execute and deliver any documents necessary to perfect and enforce this interest. Additionally, without prior notice, Seller agrees that Assembly may defer payout/restrict access to funds related to a disputed Transaction, or if payout has already occurred, directly debit Seller’s Account for the amount charged back.
a)Assembly reserves the right to immediately terminate this Agreement at any time for any reason.
b)You may terminate this Agreement at any time by halting Your use of the Platform or Payment Processing Services and notifying the Customer. Any pending Transactions will be cancelled and all remaining profits from completed sales shall be paid out according to the Transaction instructions.
c)Upon termination, Your account will be flagged as dormant and You will no longer have the ability to use Assembly. Should this occur, You agree to discontinue use of Assembly and any Assembly trademarks. Assembly will not be liable for any damages or responsible for any compensation in connection with the termination or suspension of the Payment Processing Services.
14. Survival of Termination
Section 10 (Chargebacks and Disputes), Section 11 (Fraud and Excessive Chargebacks), Section 12 (Set Off/Security Interest), Section 15 (Buyer/Seller Dispute Resolution), Section 16 (Disputes Involving Assembly), Section 17 (Liability), and Section 18 (Disclaimer) of this Agreement as well as any other of Your remaining obligations and any other terms necessary to enforce or address such obligations shall survive the termination of this Agreement for any reason.
15. Buyer/Seller Dispute Resolution.
The following provisions apply to any payment dispute or other claim, controversy or dispute between You and another Party regarding a Transaction (collectively, a “Payment Claim“).
a)Negotiation. In the event of any Payment Claim, You and the other party shall first attempt, in good faith, to resolve any such Payment Claim by negotiations among the applicable parties.
b)Mediation. If a Payment Claim has not been resolved by negotiation pursuant to subsection (A) above within seventy-two (72) hours of initiation, You shall submit the dispute to Assembly for resolution in accordance with the dispute resolution procedures set out herein.
Once a Payment Claim becomes subject to this subsection (b), Assembly will investigate the claim, acting as a neutral intermediary/mediator between the parties, and make a final determination with respect to such Payment Claim in favor of the Platform Seller or the Platform Buyer. You agree to fully cooperate with Assembly in its endeavor to resolve any Payment Claims. Without limiting the generality of the foregoing, You shall promptly, and in any event within two (2) days of receipt of the same, respond to all inquiries by Assembly regarding a Payment Claim and deliver to Assembly any information or documents requested by Assembly regarding any Payment Claim or underlying Transaction, including without limitation, (a) proof of delivery of the Goods, Assets or Services, (b) a description of the Goods, Assets or Services, (c) a copy of any receipt(s) provided, and (d) any other information or documents related to the Transaction reasonably requested by Assembly.
If both parties to the Payment Claim agree to Assembly’s recommended decision in writing then Assembly shall disburse any monies previously withheld by Assembly in connection with such Payment Claim in accordance with such decision.
So there may be no doubt, the subject matter for determination in any decision covered by this Section 15 shall be limited to the Goods, Assets or Services which are the subject of the Transaction(s) giving rise to the Payment Claim, and the purchase price paid or payable thereof.
You understand and agree that (i) Assembly will act as a neutral intermediary/mediator in connection with the resolution of the Payment Claim and, as such, will not give legal advice to either party; (ii) Assembly in its role as a neutral intermediary/mediator acts as an independent contractor and not as an agent of or in any capacity for any party; and (iii) Assembly has no personal or financial interest in the subject matter of the Payment Claim. You are advised to seek separate legal counsel during the dispute resolution process and before signing any final agreement.
By submitting a Payment Claim you agree to be fully bound by any determination(s) Assembly SHALL make AS A NEUTRAL INTERMEDIARY in connection with the Payment Claim. You FURTHER agree that Assembly shall have the ABSOLUTE authority to take any action(s) necessary to execute its determination with regards to the Payment Claim, including but not limited TO dispersing monies, unwinding Transaction(s), refunding Fees, banning Your account, removing or limiting Your ability to give feedback on a Transaction, etc. For the avoidance of doubt, by using the Payment Processing services provided by Assembly via the Customer’s Platform, you explicitly authorize ASSEMBLY to take any reasonable action(s) related to the Goods, Assets or Services and/or the Transaction AT ISSUE IN THE PAYMENT CLAIM. Should You disagree with Assembly’s determination and subsequent action(s) WITH REGARDS TO A PAYMENT CLAIM, Your exclusive AND SOLE remedy shall be final and binding arbitration, rather than by a court, as set forth in Subsection C, below.
YOU ALSO ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ASSEMBLY NOR ITS AFFILIATES NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, EQUITY HOLDERS, CONTRACTORS AND OTHER REPRESENTATIVES (COLLECTIVELY, IN THE SINGULAR, A “ASSEMBLY PARTY” AND IN THE PLURAL, THE “ASSEMBLY PARTIES“) SHALL HAVE ANY LIABILITY OF ANY KIND WHATSOEVER, ARISING FROM OR RELATING TO ANY ASSEMBLY PARTY’s ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH ASSEMBLY PARTY IN SUCH ASSEMBLY PARTY’s ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDED BY SUCH PERSON IN CONNECTION THEREWITH.
FURTHER YOU, ON BEHALF OF YOURSELVES AND EACH OF YOUR SUCCESSORS AND PERMITTED ASSIGNS, AND THE RESPECTIVE EQUITY HOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND AFFILIATES OF ANY OF THE FOREGOING, FULLY AND COMPLETELY WAIVES, RELEASES, AND FOREVER DISCHARGES, THE ASSEMBLY PARTIES, FROM ANY AND ALL CLAIMS, CHARGES, COMPLAINTS, DISPUTES, ACTIONS, CAUSES OF ACTION, SUITS, GRIEVANCES, CONTROVERSIES, DEMANDS, AGREEMENTS, CONTRACTS, COVENANTS, PROMISES, LIABILITIES, JUDGMENTS, OBLIGATIONS, DEBTS, DAMAGES (INCLUDING, BUT NOT LIMITED TO, ACTUAL, COMPENSATORY, EXEMPLARY AND PUNITIVE DAMAGES), ATTORNEYS‚Äô FEES AND COSTS AND/OR ANY OTHER LIABILITIES OF ANY KIND, NATURE, DESCRIPTION OR CHARACTER WHATSOEVER WHICH YOU, MAY NOW OR IN THE FUTURE HAVE AGAINST ANY ASSEMBLY PARTY ARISING OUT OF OR RELATING TO SUCH ASSEMBLY PARTY’s ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH ASSEMBLY PARTY IN SUCH ASSEMBLY PARTY’s ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDED BY SUCH PERSON IN CONNECTION THEREWITH.
IN THE EVENT THE FOREGOING WAIVER IS NOT ENFORCEABLE FOR ANY REASON, THEN YOU HEREBY AGREE THAT THE ASSEMBLY PARTIES MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY PAYMENT CLAIM, OR ANY ASSEMBLY PARTY’s ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH ASSEMBLY PARTY IN SUCH ASSEMBLY PARTY’s ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDED BY SUCH PERSON IN CONNECTION THEREWITH SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE PAID OR PAYABLE FOR THE GOODS, ASSETS OR SERVICES WHICH ARE THE SUBJECT OF THE TRANSACTION(S) GIVING RISE TO THE PAYMENT CLAIM.
i. Agreement to Arbitrate. All Payment Claims, which are not settled amicably by mediation under subsection (B) shall be exclusively settled by final and binding arbitration, rather than by a court, which shall be initiated upon written notification (“Arbitration Notice“) by You at any time after mediation has commenced. The choice of law set forth in Section 22 shall apply to any arbitration proceeding under this Section 15(C).
ii. Forum and Rules for Arbitration.
[For contracts in Australia:]
[The Payment Claim shall be resolved by arbitration in accordance with the Australian Center for International Commercial Arbitration (“ACICA“) Arbitration Rules. The seat of arbitration shall be [Melbourne, Australia]. The arbitration shall be decided by a single arbitrator to be selected by the mutual consent You and the other party, provided, that if within seven (7) days after delivery by the initiating party of an Arbitration Notice, the parties have not reached agreement on the choice of a sole arbitrator and provided written evidence of such agreement to ACICA, the sole arbitrator shall be appointed by ACICA.]
[For contracts in United States:]
The Payment Claim shall be resolved by the American Arbitration Association (“AAA“) under its Commercial Arbitration Rules. The seat of arbitration shall be San Francisco, California. The arbitration shall be decided by a single arbitrator to be selected by the mutual consent of You and the other party, provided, that if within seven (7) days after delivery by the initiating party of an Arbitration Notice, the parties have not reached agreement on the choice of a sole arbitrator and provided written evidence of such agreement to AAA, the sole arbitrator shall be appointed by AAA.]
[For contracts in Singapore:]
[The Payment Claim shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which SIAC Rules are deemed to be incorporated by reference in this clause, by a single arbitrator to be mutually agreed by You and the other party, provided, that, if You and the other party cannot come to an agreement in respect of the selection of the arbitrator within seven (7) days of delivery of an Arbitration Notice, such arbitrator shall be nominated by the Chairman of the SAIC, who shall serve as the “appointing authority” as such term is defined in SAIC. The seat of the arbitration shall be [____________], Singapore. The language of the arbitration shall be English.]
[For contracts in New Zealand:]
[The Payment Claim shall be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators‚Äô and Mediators‚Äô Institute of New Zealand Inc. The arbitration shall be by one arbitrator to be agreed upon by the parties and if they should fail to agree within seven (7) days of the Arbitration Notice, then such arbitrator shall be appointed by the President of the Arbitrators‚Äô and Mediators‚Äô Institute of New Zealand Inc. The seat of the arbitration shall be Wellington, New Zealand. The language of the arbitration shall be English.]
[For Contracts in South Africa:]
[[The Payment Claim shall be resolved in arbitration in accordance with the Arbitration Foundation of South Africa (“AFSA“). The seat of arbitration shall be [Cape Town, South Africa]. The arbitration shall be decided by a single arbitrator to be selected by the mutual consent of You and the other party; provided, that if within seven (7) days after delivery by the initiating party of an Arbitration Notice, the parties have not reached agreement on the choice of a sole arbitrator and provided written evidence of such agreement to AFSA, the sole arbitrator shall be appointed by AFSA. The language of the arbitration shall be English.]
iii. Enforcement of Decisions; Misc.
The decision of the arbitrator shall be final and binding upon You, and may be enforced in any court of competent jurisdiction, and You shall not seek redress against the other in any court or tribunal, except solely for the purpose of obtaining execution of the arbitral award or of obtaining a judgment consistent with the award. The arbitrator shall be guided by the terms and conditions of this Agreement which shall be binding upon them.
You and other party or parties to the Payment Claim shall bear its own costs and expenses associated with the arbitration and shall each pay an equal share of the arbitrators‚Äô and administrative fees of arbitration; provided, that the arbitrator may provide for a different allocation of cost, expenses and attorney’s fees in the final award.
d) Refund for Assembly Interpleader Costs.
You further agree to indemnify or advance any required expenses, including attorneys‚Äô fees, to Assembly that arise from or relate to any Payment Claims initiated or brought voluntarily by either party where (a) Assembly is requested to appear in connection with any claims brought by way of defense, including without limitation, by way of counterclaim, crossclaim, impleader, or third party claim, and (b) with respect to actions or proceedings where Assembly is requested to appear as a witness in any mediation or arbitration proceeding.
e) Treatment of Escrow Property.
In the event that the Payment Claim involves Escrow Services, Assembly may, at its option, continue to retain any cash or other property held in escrow at the time such Payment Claim is made which relates to or is the subject of such Payment Claim (“Escrow Property“) until Assembly: (i) receives a final non-appealable order of a court of competent jurisdiction or a final non-appealable arbitration decision directing delivery of the Escrow Property or any portion thereof, (ii) receives a written agreement executed by each of You and the other party directing delivery of the Escrow Property or the relevant portion thereof, in which event Assembly shall be authorized to disburse the Escrow Property or the relevant portion thereof in accordance with such final court order, arbitration decision, or agreement, or (iii) files an interpleader action in any court of competent jurisdiction, and upon the filing thereof, Assembly shall be relieved of all liability as to the Escrow Property and shall be entitled to recover attorneys‚Äô fees, expenses and other costs incurred in commencing and maintaining any such interpleader action. Assembly shall be entitled to act on any such agreement, court order, or arbitration decision without further question, inquiry, or consent.
16. Disputes Involving Assembly.
a)Agreement to Arbitrate. Notwithstanding anything herein to the contrary, all disputes, claims and controversies between (x) Assembly on the one hand, and (y) You, on the other hand, shall be resolved exclusively through final and binding arbitration, rather than in court, pursuant to this Section 16. This agreement to arbitrate is intended to be broadly interpreted.
b)Procedure. The choice of law set forth in Section 22 shall apply to any arbitration proceeding under Section 15(c) and this Section 16. The arbitration shall be conducted in English and shall be finally settled in accordance with the [Australian Center for International Commercial Arbitration (ACICA)] [American Arbitration Association (AAA)] [Singapore International Arbitration Centre (SIAC)] [Arbitrators‚Äô and Mediators‚Äô Institute of New Zealand Inc.] [Arbitration Foundation of South Africa (AFSA)] by:
- if the amount in controversy is less than USD $100,000, a single arbitrator to be mutually agreed by the parties to such dispute, provided, that, if the parties cannot come to an agreement in respect of the selection of the arbitrator within seven (7) days of delivery of the notice to arbitrate, such arbitrator shall, at the request of either party, be nominated by [the ACICA, who shall serve as the “appointing authority” as such term is defined in the ACICA.] [the Chairman of the SAIC, who shall serve as the “appointing authority” as such term is defined in the SAIC.] [the President of the Arbitrators‚Äô and Mediators‚Äô Institute of New Zealand Inc., who shall serve as the “appointing authority” as such term is defined in the Arbitrators‚Äô and Mediators‚Äô Institute of New Zealand Inc.] [AAA, who shall serve as the “appointing authority” as such term is defined in the Commercial Arbitration Rules of the AAA.] [the Secretariat of the AFSA, who shall perform the functions conferred upon it under the Rules of the Arbitration Foundation of Southern Africa.]
- If the amount in controversy is equal to or greater than USD $100,000, then such dispute shall be decided by a panel of three (3) arbitrators, with Assembly and the other party to the dispute each selecting an arbitrator and the two arbitrators so selected appointing a third arbitrator.
The decision of the arbitrator(s) shall be final and binding upon the parties, and may be enforced in any court of competent jurisdiction, and no party shall seek redress against the other in any court or tribunal, except solely for the purpose of obtaining execution of the arbitral award or of obtaining a judgment consistent with the award. The arbitrator shall be guided by the terms and conditions of this Agreement which shall be binding upon them.
Each party shall bear its own costs and expenses associated with the arbitration and shall each pay an equal share of the arbitrators‚Äô and administrative fees of arbitration; provided, that the arbitrator may provide for a different allocation of cost, expenses and attorney’s fees in the final award.
c) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST ASSEMBLY ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS ASSEMBLY AGREES OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’s OR PARTY’s CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’s INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER ASSEMBLY USERS.
In no event shall Assembly or any of its Representatives be liable to you for any Losses, of any kind whatsoever, arising out or relating to their respective use of, or inability to use, the Payment Processing services, regardless of the legal theory under which such Losses are sought. IN THE EVENT THE FOREGOING IS NOT ENFORCEABLE FOR ANY REASON, THEN ASSEMBLY’s MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY YOU ARISING FROM OR RELATING TO THE Payment Processing service SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE PAID OR PAYABLE FOR THE GOODS, ASSETS OR SERVICES WHICH ARE THE SUBJECT OF THE TRANSACTION(S) GIVING RISE TO THE PAYMENT CLAIM. In no event shall Assembly be liable (under any theory or circumstance) for any lost profits, data, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to the Payment Processing services.
18. Disclaimer of Warranty
THE PAYMENT PROCESSING SERVICES ARE PROVIDED “AS IS” OR “AS AVAILABLE” AND ASSEMBLY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO YOU REGARDING THE PAYMENT PROCESSING SERVICES, INCLUDING, WITHOUT LIMITATION, THAT THE PAYMENT PROCESSING SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE PAYMENT PROCESSING SERVICES OR THE ASSEMBLY SYSTEMS WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASSEMBLY DOES NOT WARRANT IN ANY WAY THE LEGALITY OF THE TRANSACTION, TITLE OR CONDITION OF ANY GOODS, ASSETS OR SERVICES WHETHER THE AGREEMENTS BETWEEN THE PARTIES PROPERLY AND LEGALLY TRANSFER OWNERSHIP, OR ANY OTHER ASPECT OF ANY OR ALL OF THE AGREEMENTS BETWEEN THE PARTIES.
ASSEMBLY DOES NOT ENDORSE THE PLATFORM OR ANY THIRD PARTY WEBSITE, OR ASSUME RESPONSIBILITY OR LIABILITY FOR THE ACCURACY OF ANY MATERIAL CONTAINED THEREIN, OR ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS ARISING THEREFROM, OR ANY FRAUD OR OTHER CRIME FACILITATED THEREBY. IN NO EVENT WILL ASSEMBLY BE LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THE CUSTOMER OR YOUR FINANCIAL INSTITUTION, ANY PAYMENT SYSTEM, ANY THIRD PARTY SERVICE PROVIDER, ANY PROVIDER OF TELECOMMUNICATIONS SERVICES, INTERNET ACCESS OR COMPUTER EQUIPMENT OR SOFTWARE, ANY MAIL OR DELIVERY SERVICE OR ANY PAYMENT OR CLEARING HOUSE SYSTEM OR FOR ANY CIRCUMSTANCES BEYOND ASSEMBLY CONTROL (INCLUDING BUT NOT LIMITED TO, FIRE, FLOOD OR OTHER NATURAL DISASTER, WAR, RIOT, STRIKE, TERRORISM, ACT OF CIVIL OR MILITARY AUTHORITY, EQUIPMENT FAILURE, COMPUTER VIRUS, INFILTRATION OR HACKING BY A THIRD PARTY, OR FAILURE OR INTERRUPTION OF ELECTRICAL, TELECOMMUNICATIONS OR OTHER UTILITY SERVICES).
19. Representations of User
You agree, and hereby represent and warrant, that:
- You are at least 18 years of age, OR You are at least 13 years of age and have the consent of a parent or guardian to use the Platform (or of the applicable age of majority in your applicable jurisdiction). Assembly may request a copy of applicable government identification to provide your identity.
- You have the authority to enter into and perform according to this Agreement.
- You are authorized to conduct business in [Australia] [Singapore] [New Zealand] [the United States] [South Africa] (i.e. You are [an Australian] [a Singaporean] [a New Zealand] [an American] [a South African] citizen, legal resident, or business entity with the authorization to conduct business in Your respective state).
- The information You provide pursuant to this Agreement is complete and correct as to the best of Your knowledge.
- You shall fulfil the obligations of any sale or Transaction You incur on the Platform or through the use of Assembly.
- Your use of the Platform and Assembly as well as Your Transactions all comply with the laws and regulations applicable to You and Your business.
20. Commercial Entity
In the event i) You process over $100,000 in annual sales, or ii) Assembly’s bank partner otherwise requires it, You agree to be bound by the terms and conditions of the Commercial Entity Agreement, provided to You by Assembly. This does not change any transaction arrangements, fees, or fulfilment structures between You, Assembly, and the Customer.
21. Payment Card Industry Standards
Seller represents and warrants that it shall implement and maintain certification of Payment Card Industry Data Security Standard, as the same may be amended, updated, replaced or augmented (the “PCI Standard“). If during the term of the Agreement, Seller undergoes, or has reason to believe that it will undergo, an adverse change in its certification or compliance status with the PCI Standard and/or other material payment card industry standards, it will promptly notify Assembly of such circumstances. Seller shall maintain and protect in accordance with all applicable laws and PCI Standard the security of all cardholder data within its possession or control. Seller will provide reasonable care and efforts to detect fraudulent credit card activity in connection with any Transactions.
- a) Modifications to the Agreement. Assembly reserves the right to update or modify this Agreement at any time with notice that Assembly deems reasonable according to the extent of the changes. Notice may include notice on our website or the Platform. Any use of our Payment Processing Services after publication of such notice shall constitute Your acceptance of the modifications.
- b) Governing Law. This Agreement will be construed in accordance with and governed by the laws of [US – the State of California] [Australia – the State of Victoria] [New Zealand] [the Republic of Singapore] [South Africa], without reference to their rules regarding conflicts of law.
- c) Waiver. If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.
- d) Severability. If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this Agreement invalid or unenforceable and such provision shall be modified, amended, or limited only to the extent necessary to render it valid and enforceable.
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