End User Agreement
Effective as of November 15th, 2016
1. Payment Terms and Conditions
Payment Processing services. Marktplaats B.V. (“Customer”) has contracted PromisePay Pty. Ltd. an Australian Company registered in the State of Victoria trading as Assembly Payments Pty. Ltd. (together with its affiliates, subsidiaries and divisions, collectively “Assembly” or “We” or “Us”) as a point of sale payment processor to independently facilitate the payment process for Goods, Assets or Services Purchased and Sold via Customer’s online platform by registered users.
- 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 Fee and Verification Fee 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 any 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.
Furthermore the Platform Seller, and not Customer, will be the Merchant of Record relating to Platform Transactions between Platform Sellers and Platform Buyers.
To the extent permitted by Applicable Law, in no event shall Customer be liable to any Subscriber, Platform Buyer, or Platform Seller for any 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 (collectively, “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 CUSTOMER’S MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY ANY SUBSCRIBER, PLATFORM BUYER OR PLATFORM SELLER ARISING FROM OR RELATING TO THE PAYMENT PROCESSING SERVICES 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.
- “Account” means a depository account with a financial institution in South Africa designated by You for the payment to, or receipt of monies by, You pursuant to this Agreement.
- “Applicable Law” means any laws and regulations or requirements from time to time that govern the performance on the one hand, and the use and receipt on the other hand, of the Payment Processing services.
- “Cardholder” refers to the Platform Buyer when using a credit card or a debit card for payment to the Platform Seller, and the Subscriber when using a credit card or a debit card for payment to the Customer.
- “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 Subscribers or Platform Buyers, which will be co-mingled and held with funds belonging to other customers of Assembly in one or more non-interest bearing For Benefit Of (FBO) accounts at NAB Trustees in Australia (or successor Trustee as Assembly may determine), (a) on Customer’s behalf (in the case of a Subscription Transaction) and/or (b) on Platform Seller’s behalf (in the case of a Platform Transaction) and for the benefit of the Customer or Platform Seller, as the case may be.
- “Funds” means currency or a claim that can be converted into currency through a financial institution, electronic payments network, or other formal payment system.
- “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” means Customer’s e-commerce internet site where Platform Buyers, Platform Sellers and Subscribers who have registered with Customer, are able to Purchase and Transfer Goods, Assets and/or Services.
- “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 a Platform Seller 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 a transaction involving the Purchase and Sale of Goods, Assets or Services by Platform Buyer and Platform Seller 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” and “Verification 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 sub-contracted by Assembly to facilitate payment processing as well as preventing fraud and non-compliance with Applicable Law.
- “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”—claims 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
- Bank account details
If You are operating a registered business (Pty Ltd, Pty Lte, Partnership, Trust, Close Corporation, 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 outside of South Africa, 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.
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
- 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.
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.
6. Funds Held for Benefit of Platform Buyer, Subscriber or Platform Seller
Assembly maintains a ledger that properly delineates the Platform Seller for whom the funds are earmarked, and the Subscriber or Platform Buyer from whom such funds are received. Assembly has sole discretion over the establishment and maintenance of any Custodian Accounts. Assembly will hold such funds separate from Assembly’s corporate funds/business account in a non-interest bearing trust account, and warrants that it will not:
- use the funds for corporate purposes;
- make the funds available to creditors in the event of Assembly’s bankruptcy or for any other purpose;
- knowingly permit Assembly’s creditors to seize said funds; and/or
- cause the funds to become subject to any liens, encumbrances or claims of any other person.
Neither Assembly, nor Customer nor Yourself, will receive interest or any other earnings on funds in Custodial Accounts.
Assembly charges a Transaction Fee to the Platform Seller and/or Subscriber for each Transaction. The Transaction Fee comprises of the following:
- pursuant to the Customer’s Platform User Agreement, a percentage of each Transaction Fee charged by a Platform Seller, which Assembly will pay over to the Customer (a “Customer Brokerage Fee”); and
- pursuant to this Agreement, a percentage of each Transaction, which Assembly will retain (a “Assembly Brokerage Fee”).
You hereby authorize and direct Promise Pay to:
- deduct both the Customer Brokerage Fee and the Assembly Brokerage Fee from the Transaction Funds;
- remit the Customer Brokerage Fee to Customer; and
- retain the Assembly Brokerage Fee.
- Once Transaction Fees have been paid to Customer or Assembly, as the case may be, they become non-refundable.
- 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, or cause to be used, the Payment Processing services for, or otherwise accept payments by utilising the Payment Processing services 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.
9. Right to Reject a Transaction
Assembly reserves the right, in its sole discretion, to refuse to complete any Transaction that Assembly has commercially reasonable reason to believe was not unauthorized by the Subscriber or the Platform Buyer, as the case may be, or made by someone other than the Subscriber or Platform Buyer, as the case may be, may violate Applicable Law, or if Assembly has reasonable cause not to honour 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”—claims 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 Platform Buyer’s or Subscriber’s financial institution, or the Transaction was not authorized by the Subscriber or the Platform Buyer, as the case may be, unlawful, suspicious, or in violation of Section 8 (Prohibited Transactions), Platform Seller associated with the Transaction Funds Reversal is fully liable for the Transaction Funds Reversal amount. For any Transaction resulting in a Transaction Funds Reversal, Assembly may, at its discretion, withhold the Transaction Funds Reversal in a non-interest bearing trust account until such time as the dispute has been resolved in accordance with Section 15 (Dispute Resolution), or deduct the amount of the Transaction Funds Reversal (and any associated fees) from the Subscriber/Platform Seller’s Account, including without limitation by direct debit.
- 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
Platform Seller agrees to use its reasonable commercial efforts to assist Assembly with any fraud or chargeback issue. Subscriber, Platform Seller and Platform Buyer also understand and agree that Assembly may delay or reject Transactions that Assembly deems potentially fraudulent. Platform Seller or Subscriber, as the case may be, also agrees to allow Assembly to share information about a Chargeback with the Platform Buyer (in the case of a Platform Transaction), or Customer (in the case of a Subscription Transaction), or the financial institution where Platform Seller’s or Subscriber’s Account is held, to investigate or otherwise resolve a chargeback. Assembly will make any such disclosure subject to and in accordance with Applicable Law.
12. Set Off/Security Interest
To the extent allowed by Applicable Law, but only for the purposes of Transaction Funds Reversals and Fraud or Excessive Chargebacks as provided for in Sections 10 and 11 above, Subscriber/Platform Seller/Platform Buyer grants to Assembly a right of set-off against any Account created for Subscriber/Platform Seller/Platform Buyer through Subscriber’s/Platform Seller’s/Platform Buyer’s use of the Payment Processing services, including any reserve or any pending pay-outs that Assembly has received for processing pursuant to this Agreement. Subscriber/Platform Seller/Platform Buyer agrees to execute and deliver any documents necessary to perfect and enforce this interest. Additionally, without prior notice, but only for the purposes of Transaction Funds Reversals and Fraud or Excessive Chargebacks as provided for in Sections 10 and 11 above, Subscriber/Platform Seller/Platform Buyer agrees that Assembly may defer pay-out/restrict access to funds related to a disputed Transaction, or if pay-out has already occurred, directly debit Subscriber’s/Platform Seller’s/Platform Buyer’s Account for the amount charged back.
Assembly reserves the right to immediately terminate this Agreement at any time for any reason, and notifying the Customer and the Platform Seller/ Platform Buyer/ Subscriber, as the case may be
Platform Seller/ Platform Buyer/ Subscriber may terminate this Agreement at any time for any reason by halting the use of the Payment Processing services and notifying the Customer and Assembly. Pursuant to such notification, any pending Purchases or Sales will be cancelled. In the case of:
- completed Sales, all remaining Funds (after deduction of applicable Transaction Fees), shall be paid out to Platform Sellers or the Customer, as applicable, according to the terms of this Agreement; and
- incomplete Sales: all remaining Transaction Funds shall be refunded, after the deduction of any applicable Transaction Fees, to Platform Buyers or the Subscriber, as applicable, according to the terms of this Agreement.
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. To the extent permitted under Applicable Law, and in instances other than a breach by Assembly of this Agreement, Assembly will not be liable for any damages or responsible for any compensation in connection with Your termination 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 (Platform Buyer/Platform Seller/Subscriber/Customer Dispute Resolution), Section 16 (Disputes Involving Assembly), Section 17 (Liability), and Section 18 (Disclaimer) of this Agreement as well as any other obligations and any terms which by their nature would reasonably continue beyond the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement for any reason.
15. Platform Buyer/Platform Seller/Subscriber Dispute Resolution
The following provisions apply to any payment dispute or other claim, controversy or dispute brought by a Platform Seller, Platform Buyer, or a Subscriber, regarding a Transaction (collectively, a “Payment Claim”):
- Negotiation. In the event of any Payment Claim, the party bringing the Payment Claim (“Claimant”) shall first attempt, in good faith, to resolve any such Payment Claim by negotiations among the parties.
- Mediation. If a Payment Claim has not been resolved by negotiation pursuant to Section 15.1.1 above within seventy-two (72) hours of initiation, the Claimant shall submit the dispute to Assembly for resolution in accordance with the dispute resolution procedures set out at www.Assembly.com/policies.
Once a Payment Claim becomes subject to this Section 15.2, Assembly will investigate the claim, act as a neutral intermediary/mediator between the parties and make a final recommended decision with respect to such Payment Claim. The parties to the dispute agree to fully cooperate with Assembly in its endeavour to resolve any Payment Claims. Without limiting the generality of the foregoing, the parties to the dispute 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:
- proof of delivery of the Goods, Assets or Services;
- a description of the Goods, Assets or Services;
- a copy of the quotation/ receipt provided to the Platform Buyer;
- a copy of Platform Buyer’s approval of the Goods, Assets or Services so as to release payment and;
- any other information or documents related to the Transaction reasonably requested by Assembly.
If all the parties to the dispute agree to Assembly’s recommended decision in writing, they shall notify Assembly accordingly within 15 (fifteen) days of the date on which Assembly made its recommendation. Assembly shall within 15 (fifteen) days of being notified by the parties of their agreement, disburse any monies previously withheld by Assembly in connection with such Payment Claim in accordance with its recommended decision.
If the parties do not agree with Assembly’s recommended decision, any party may upon written notification to Assembly and the other party or parties to the Payment Claim, initiate arbitration proceedings as set forth in Section 15.12, within fifteen (15) days of the date on which Assembly gives its recommended decision.
If no party initiates arbitration, Assembly shall disburse any monies previously withheld by Assembly in connection with such Payment Claim in accordance with the recommended decision within 15 (fifteen) days of the arbitration initiation deadline.
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.
Subscriber, Platform Seller and Platform Buyer each understands and agrees that:
- 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;
- 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
- Assembly has no personal or financial interest in the subject matter of the Payment Claim.
Subscriber, Platform Seller and Platform Buyer are advised to seek separate legal counsel during the dispute resolution process and before signing any final settlement agreement.
SUBSCRIBER, PLATFORM SELLER AND PLATFORM BUYER EACH ALSO ACKNOWLEDGES AND AGREES 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 RENDERED BY SUCH PERSON IN CONNECTION THEREWITH.
FURTHER EACH OF SUBSCRIBER, PLATFORM SELLER AND PLATFORM BUYER, 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, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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’ FEES AND COSTS AND/OR ANY OTHER LIABILITIES OF ANY KIND, NATURE, DESCRIPTION OR CHARACTER WHATSOEVER WHICH YOU OR BUYER, 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 RENDERED BY SUCH PERSON IN CONNECTION THEREWITH.
IN THE EVENT THE FOREGOING WAIVER IS NOT ENFORCEABLE FOR ANY REASON, THEN SUBSCRIBER, PLATFORM SELLER AND PLATFORM BUYER EACH HEREBY AGREES 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 RENDERED 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.
- Agreement to Arbitrate.
All Payment Claims, which are not settled amicably by mediation under Section 15.2 shall be exclusively settled by final and binding arbitration, rather than by a court, which shall be initiated upon written notification (“Arbitration Notice”), at any time after mediation has commenced. The choice of law set forth in Section 22.3 shall apply to any arbitration proceeding under this Section 15.12.
- Forum and Rules for Arbitration.
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 the parties to the arbitration, 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.
- Enforcement of Decisions; Miscellaneous.
The decision of the arbitrator shall be final and binding upon Subscriber, Platform Seller, and/or the Platform Buyer, as applicable, and may be enforced in any court of competent jurisdiction. The arbitrator shall be guided by the terms and conditions of this Agreement which shall be binding upon them.
Subscriber, Platform Seller, and/or Platform Buyer, as applicable, shall each bear its own costs and expenses associated with the arbitration and shall each pay an equal share of the arbitrators’ 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.
Refund for Assembly Interpleader Costs
Subscriber, Platform Seller and Platform Buyer, each further agrees to indemnify Assembly against, or advance to Assembly, any required expenses, including attorneys’ fees, that arise from or relate to any Payment Claims initiated or brought voluntarily by either party where:
- 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;
- with respect to actions or proceedings where Assembly is requested to appear as a witness in any mediation or arbitration proceeding.
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:
- 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;
- receives a written agreement executed by each of Platform Seller and Platform Buyer 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 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’ 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.
Notwithstanding anything to the contrary in this Section 15, any party shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent court having jurisdiction.0
16. Disputes Involving PromisePay
Agreement to Arbitrate. Notwithstanding anything herein to the contrary, any dispute or claim arising out of, relating to or in connection with this Agreement shall be resolved through arbitration, rather than in court, pursuant to this Section 16. This agreement to arbitrate is intended to be broadly interpreted.
- The choice of law set forth in Section 22 shall apply to any arbitration proceeding under Section 15.2 and this Section 16.
- The arbitration shall be conducted in English and shall be finally settled in accordance with the commercial rules of Arbitration Foundation of South Africa (“AFSA”).
- The decision of the arbitrator(s) shall be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. 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’ 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.
Notwithstanding anything to the contrary in this Section 16, any party shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent court having jurisdiction.0[>
This Section 16 will continue to be binding on the parties notwithstanding any termination or cancellation of this Agreement.
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 their Representatives (“the Assembly Group”) be liable to You for any Losses, of any kind whatsoever, arising out or relating to this Agreement, including the provisioning of, the use of, or the 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 UNDER APPLICABLE LAW, THEN THE MAXIMUM AGGREGATE LIABILITY OF THE Assembly GROUP ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY YOU ARISING FROM OR RELATING TO THE AGREEMENT (INCLUDING 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 the Assembly Group 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 INTER SE.
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 UNLESS SUCH INACCURACY, INFRINGEMENT, FRAUD OR OTHER CRIME AROSE FROM OR IN CONNECTION WITH THE PROVISIONING OF THE PROMISE PAY SERVICES. IN NO EVENT WILL Assembly BE LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY (A) EXCLUDING A THIRD PARTY ENGAGED BY Assembly UNDER AND FOR THE PURPOSES OF THIS AGREEMENT, AND (B) INCLUDING, BUT NOT LIMITED TO, ANY FINANCIAL INSTITUTION, ANY PAYMENT SYSTEM, 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.
- You have the authority to enter into and perform according to this Agreement.
- You are authorized to conduct business in South Africa (i.e. You are a South African citizen, legal resident, or business entity with the authorization to conduct business in South Africa).
- 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 Applicable Law.
20. Commercial Entity
In the event that a) You process over $100,000 in annual sales (or comparable in Currency), or b) Assembly’s bank partner otherwise requires it for commercially reasonable reasons, You agree to be bound by the terms and conditions of the applicable commercial entity agreement, available upon request to support@Assembly.com. This does not change any transaction arrangements, fees, or fulfilment structures between You, Assembly, and the Customer.
21. Payment Card Industry Standards
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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 Assembly Platform. Any use of our Payment Processing services after publication of such notice shall constitute Your acceptance of the modifications. In the case of material changes (e.g. changes to the limitation of liability section, indemnities, or the use of Your Personal Information), we will require your prior written consent, which may be obtained electronically through affirmative consent via the Platform.
Entire Agreement. This Agreement and all incorporated attachments or exhibits constitute the entire agreement between the parties with regards to the subject matter hereof and replaces and supersedes all other prior discussions, agreements, representations (excluding fraudulent representations) and understandings of any kind, and every nature between them.
Governing Law. This Agreement will be governed and construed in accordance with the laws of the Republic of South Africa, without reference to their rules regarding conflicts of law. You agree that the High Court of South Africa has non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) or enforce any judgment given by a South African court, or arbitrator under Section 16 regarding a dispute stemming from the Agreement.
Waiver. No waiver, indulgence, delay or relaxation of any of the terms and conditions of this Agreement or any rights arising from such agreements will be binding or effectual for any purpose unless expressed in writing and signed by the party giving the same, and will be effective only in the specific instance and for the purpose given.
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.
Notices. Any notices, requests and other communications required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated:
- by email, upon acknowledgment of receipt of electronic transmission; and
- by publication on the Assembly website or the Assembly Platform, on publication.
Third Party Beneficiaries. No third party is a third party beneficiary to this Agreement, unless expressly so stated. The parties expressly acknowledge and agree that the Customer is a third party beneficiaries to this Agreement, as their interests apply.