This Payment Processing Services Agreement (“Agreement”) is a binding legal agreement by and between Assembly Payments, (together with its affiliates, subsidiaries and divisions, collectively referred to herein as “Assembly”) and the entity or individual who agrees to or enters this Agreement (“Customer”). This Agreement sets forth the terms and conditions which will govern Customer’s use of Assembly’s Payment Processing Services, as defined below.
The Agreement is effective and legally binding on the date when Customer creates an account with Assembly, affirmatively accepts the Agreement in writing or electronically, or otherwise uses Assembly’s Payment Processing Services (“Effective Date”).
Assembly provides services to merchants, consumers, and platforms to facilitate receipt of payment for goods or services, which may include, but are not limited to, receipt of payment by debit/credit card, bank transfer, ACH (as defined below), and/or email or text message, as well as other services as more fully described herein, through Assembly’s front-end integration and Application Programming Interface (“API“).
Customer desires to engage Assembly to provide one or more Payment Processing Services, as defined below, in accordance with the terms and conditions set forth more specifically herein.
In consideration of the promises and mutual agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
a) Customer hereby appoints Assembly to be its provider of Payment Processing Services during the term of this Agreement.
b) Assembly hereby grants Customer, for the term of this Agreement, a non-exclusive, non-transferable, revocable license to access and use the API and to utilize any software, systems, and/or communication links furnished by Assembly in conjunction with the APIs and/or Payment Processing Services (collectively, the “Assembly System“) in accordance with the terms and conditions of this Agreement and any other implementation and use requirements provided to Customer by Assembly from time-to-time in writing.
c) Customer may not rent, lease, assign, sublicense or otherwise transfer its rights in the Assembly System to any other Person. Customer may not alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from or included in the Assembly System. All rights, title, and interest to the Assembly System, including any Assembly IP and Marks, are owned exclusively by Assembly.
a) Assembly is obligated to perform only those duties expressly described in this Agreement and/or the Assembly End User Agreement, as applicable. Assembly shall not be liable for any error in judgment, for any act taken or not taken, or for any mistake of fact or law, except for as expressly provided for herein. Assembly may rely upon any notice, demand, request, letter, certificate, agreement or any other document which purports to have been transmitted or signed by or on behalf of Customer indicated as the sender or signatory thereof and shall have no duty to make any inquiry or investigation.
b) If a Transaction cannot be completed for any reason, including cancellation by Assembly for any reason, Assembly will notify Customer by e-mail and provide a Report (as defined in Section 5) to Customer detailing the exception or cancellation. At Assembly’s sole discretion, Assembly may cancel any Transaction if any party to a Transaction fails to agree on the terms as required in the Assembly End User Agreement.
c) Payment Transaction history will be available to Customer through the Assembly Dashboard and API. Additional information regarding Transactions can be requested from the following email address: firstname.lastname@example.org.
d) Optional Additional Customer Support. For additional fees, set forth in the Fee Schedule, Customer may elect to have Assembly provide additional tiered levels of customer support, which may include, but are not limited to, proactive transaction assistance, white-labelled user support, real time escalations via Slack, white glove concierge, and dispute resolution (in escrow).
a) Fraud Scanning. Assembly has advanced fraud monitoring, pre- and post-transaction, to safeguard against suspicious activity and fraudulent users on Customer’s platform. In connection with its payment of the Fees, Customer has access to the fraud scanning. Assembly will provide Customer via email with a report (the “Report“) identifying any transactions that were rejected or flagged as potentially fraudulent or suspicious and any chargebacks, retrieval requests and chargeback reversals (collectively “Exceptions“), together with sufficient information to identify the Platform Transaction resulting in the Exception. Customer acknowledges that the purpose of the Report is to provide Customer with notification of Exceptions, and that Assembly assumes no liability in connection with anything contained in the Report.
b) Optional Additional Fraud Protection. Customer may elect to have Assembly provide Fraud Protection in addition to the fraud scanning services inherent in Assembly’s Payment Processing Services. For additional Fees, as set forth in the Fee Schedule, Assembly will provide Customer with certain tiers of increasing fraud protection. These additional fraud protection services may include, but are not limited to, tailored fraud rules specific to Customer’s industry and/or business, suspicious buyer verifications, chargeback investigation management, and 3-D Secure. The additional fraud protection offerings may also include chargeback liability protection, which means that, subject to the other terms and conditions set forth herein, if Assembly accepts a Transaction that is later found to be fraudulent, Assembly will reimburse Customer or Platform Seller, as the case may be, for the purchase price of the Goods, Assets or Services which are subject to such Transaction, together with any fees, fines or penalties charged by the Card Network or payment scheme for such chargeback. Assembly shall ensure that each Transaction submitted for processing under this Agreement is able to be processed hereunder as submitted, and Assembly retains, in its sole discretion, the decision-making authority to process or deny a Transaction based on its fraud monitoring capabilities.
a) Customer will designate an Account to which all amounts due to or from Customer pursuant to this Agreement shall be paid. Such payments may be made by direct debit/ACH via the respective Direct Debit/ACH Agreement attached as an exhibit hereto or otherwise provided to Customer by Assembly. Customer hereby expressly authorizes Assembly to initiate credit entries to such Account for payment of amounts due to Customer (whether for brokerage fees due from Platform Sellers, fees paid by Subscribers, or otherwise), and to debit Customer’s Account to discharge Customer’s obligations for fees payable to Assembly pursuant to this Agreement.
b) Customer agrees to provide Assembly with any necessary information to perform the Payment Processing Services contemplated in this Agreement, including but not limited to its full legal name, address, phone number, email address, bank account details, EIN or ABN, and social security number or tax ID number of principal(s). Customer hereby authorizes Assembly to share, retrieve, and verify information about Customer through its Third Party Service Providers, to the extent required to provide the Payment Processing Services. Assembly may require that this information be updated from time to time. Any Customer information collected by Assembly shall be subject to the terms of this Agreement, including Confidential Information (Section 8) and Data Security (Section 9) provisions.
c) Customer agrees to provide to Assembly, via its API or otherwise, such data and information regarding Platform Users, as is necessary for Assembly to establish accounts, comply with applicable laws and payment industry rules or standards or as otherwise reasonably necessary for Assembly to provide the Payment Processing Services contemplated hereby.
d) Customer acknowledges and agrees to the Card Brand Rules set forth in Attachment 1, attached hereto and incorporated by reference into this Agreement.
e) Customer agrees to maintain Transaction records for up to two (2) years from Transaction date and to make these records available to Assembly upon request. Customer’s Assembly Transaction history will be available through the Assembly Dashboard and API. Customer is solely responsible for reconciliation of Transaction history with its actual Transactions. However, should Customer find any discrepancy during reconciliation, Customer agrees to notify Assembly and Assembly will promptly investigate and attempt to resolve any reported discrepancies.
f) Customer agrees to use commercially reasonable efforts to monitor and take action to decrease the likelihood of Prohibited Transactions (as defined in Section 8 (Prohibited Transactions) of the Assembly End User Agreement, attached hereto as Exhibit A) and to comply with all applicable laws and regulations.
g) Customer acknowledges that with respect to Subscription Transactions, Assembly will be acting as the payment facilitator and agent in connection with Customer’s Sale of Goods, Assets or Services to the Subscriber. Accordingly, Customer hereby agrees to be bound by the additional terms and conditions set out in Attachment 2, which are incorporated by reference herein.
h) In order for Assembly to meet its compliance obligations and comply with applicable law, Customer agrees to assist Assembly with its customer due diligence requirements by ensuring that its Platform Users provide the information requested in the Assembly End User Agreement. Customer shall include the applicable language set forth in Attachment 4 in its Platform User Agreement and provide written confirmation of the same to Assembly within a commercially reasonable period of time.
i) Without limiting the generality of Section 9(b), Customer represents and warrants that it shall implement and maintain certification of PCI Standards and that it shall undergo independent third party quarterly system scans that audit for all known methods hackers use to access private information, in addition to vulnerabilities that would allow malicious software (i.e., viruses and worms) to gain access to or disrupt the network devices. If during the term of the Agreement, Customer undergoes, or has reason to believe that it will undergo, an adverse change in its certification or compliance status with the PCI Standards and/or other material payment card industry standards, it will promptly notify Assembly of such circumstances. Customer agrees promptly to provide, at least annually or at the request of the Assembly, current evidence, in form and substance reasonably satisfactory to Assembly, of compliance with PCI Standards, which an authority recognized by the payment card industry for that purpose has properly certified. Customer shall maintain and protect, in accordance with all applicable laws and PCI Standards, the security of all cardholder data within its possession or control. Customer will provide reasonable care and efforts to detect fraudulent credit card activity in connection with any Transactions.
j) Customer further agrees (i) to use reasonable efforts to provide Assembly with notice of changes to applicable law and other rules applicable to Assembly after receiving notice thereof, and (ii) if Customer receives notice from any governmental or regulatory body that any Transaction processed by Assembly under this Agreement is not in compliance with applicable law, to immediately notify Assembly after receiving such notice.
a) All fees, expenses and other amounts payable to Assembly for Payment Processing Services are set forth as Attachment 3 hereto (“Fee Schedule”), which may be updated from time to time by Assembly.
b) In the event that any fees are to be paid to Customer by a Platform User based on a percentage of the purchase price of the underlying Transaction (a “Customer Brokerage Fee”), Customer shall ensure, and hereby covenants, represents and warrants that the Customer’s Platform User Agreement clearly authorizes and sets forth the manner in which such fees will be calculated and paid.
c) Assembly shall collect any Customer Brokerage Fees due from Subscriber, Platform Sellers and/or Buyers from a Transaction and deposit such amounts into the designated Customer Account. Payment of the Brokerage Fee will be made to Customer at the same time the Platform Seller is paid, if applicable.
d) Customer hereby authorizes Assembly to set off and deduct the amount of all Payment Processing Service Fees from amounts due and payable hereunder to Customer for Customer Brokerage Fees (or any other amounts due to Customer hereunder), including any reversed or invalidated payments, chargebacks, refunds or other amounts that Customer may owe to Assembly under this Agreement.
e) Invoices for settlement of each Transaction are available from the Assembly Dashboard. Each invoice will include the Transaction detail, the associated fees being invoiced, the period of the invoice and the settlement date.
f) Since the use of a bank account, credit card or debit card account, or the making of an electronic funds transfer may be limited by a participant’s agreement with its financial institution and/or by applicable law, Assembly is not liable for any incomplete Transactions as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from any Account.
g) Assembly is not responsible for the 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 or otherwise arising from any Transaction.
h) Neither Customer nor its Platform Users are entitled to any interest or other compensation associated with any Transaction funds.
i) Customer may elect for certain optional additional customer support offerings (Section 4(d)) and optional additional fraud support (Section 5(b)) for additional fees, as set forth in the Fee Schedule.
Each party acknowledges and agrees that all non-public information disclosed by one party (“Discloser“) to the other party (“Recipient“) in connection with this Agreement and the Payment Processing Services, including, but not limited to, the terms of this Agreement, a party’s confidential business and financial information, licenses, business plans, data, computer software (source and object codes), intellectual property, forecasts, techniques, inventions, discoveries, know-how, trade secrets, User Data, and processes which is (i) identified at the time of disclosure as confidential, either written or verbally, or (ii) disclosed in a manner such that a reasonable person would understand its confidential or proprietary nature shall be considered “Confidential Information“. Confidential Information also includes each party’s customer information, and all personal information of potential and actual Platform Buyers/Sellers and Subscribers. Recipient will hold the Confidential Information in strict confidence, and will restrict its use of Confidential Information to the purposes anticipated in this Agreement. Recipient hereby acknowledges the Discloser is the owner or licensee of the Confidential Information. Notwithstanding the foregoing to the contrary, Recipient will not be obligated to hold confidential any information from Discloser which (i) is or becomes known to the general public; (ii) is rightfully received by Recipient from a third party without a duty of confidentiality; or (iii) was already known to Recipient prior to the disclosure, and that knowledge was evidenced in writing prior to the date of disclosure. If a valid order or subpoena is issued by a court or government agency requiring Recipient to disclose Confidential Information, such disclosure will not violate this Section, however, Recipient shall notify Discloser of the request unless prohibited from providing such notification. The rights and obligations of this Section will survive termination of this Agreement for the longer of five (5) years from expiration or termination of this Agreement, or the confidentiality period required by applicable law, whichever is longer.
Each party acknowledges that unauthorized disclosure or use of the Confidential Information by a party may irreparably damage the other party in such a way that adequate compensation could not be obtained from damages in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Discloser the right to seek injunctive relief restraining such unauthorized disclosure or use, in addition to any other remedy otherwise available (including reasonable attorneys fees). Each party hereby waives the posting of a bond with respect to any action for injunctive relief.
Each party is responsible for ensuring data security on their website and for all data and Confidential Information acquired during the provision of Payment Processing Services under this Agreement. Each party agrees to comply with all applicable laws and regulations, including PCI Standards regarding the handling and storage of personal and financial data of Platform Buyers, Platform Sellers and Subscribers.
a) Assembly uses both technical and procedural measures to secure the non-public personal information and data of Customer, Platform Buyers/Sellers and Subscribers (collectively, “User Data“). Assembly agrees to (i) employ industry best practices in connection with the protection of User Data, (ii) collect, store, copy, transfer and use User Data only for purposes of this Agreement and or the Assembly End User Agreement, (iii) comply (and cause its representatives to comply) with all applicable laws, rules or regulations relating to privacy and data protection (“Data Laws“), (iv) not knowingly do or cause or permit to be done anything which may cause or otherwise result in a breach by Customer of applicable Data Laws. Unless otherwise prohibited by law, upon Assembly’s discovery of any unauthorized access, use, copying, alteration, transfer, or other breach of security (electronic or physical) involving any of the User Data (a “Security Incident“), Assembly will promptly provide detailed written notice to Customer and cooperate (and cause any subcontractors to cooperate) fully with Customer in the investigation and resolution, of such Security Incident. Assembly agrees to comply with Payment Card Industry Data Security Standards (PCI-DSS) requirements available at https://www.pcisecuritystandards.org/.
b) Customer is responsible for maintaining the confidentiality and security of any User Data and Confidential Information in its possession, custody or control and its Assembly account. This includes, but is not limited to, securely storing and protecting Customer’s Assembly API-key and Dashboard login credentials. Customer agrees to immediately notify Assembly of any unauthorized access to or use of the Payment Processing Service. Customer also agrees to (i) not store CVV or CVV2, (ii) use Assembly.js or otherwise securely transmit payment information to Assembly, and (iii) upon request by Assembly, provide a copy of its card data security implementation details. If any deficiencies are found in Customer’s data security, including, but not limited to, the collection, storage or transfer of payment information, Customer agrees to work with Assembly to remove the deficiencies. Customer agrees to comply with all applicable laws, rules and regulations in connection with the transfer, collection, security and dissemination of any personal, financial or Transaction information.
c) Intellectual Property. All digital and intellectual property developed by Assembly for the purposes of this Agreement remains the exclusive property of Assembly.
i) Marks. Assembly hereby grants to Customer a limited, non-exclusive, royalty-free, non-transferable, non-sublicensable and non-assignable license to display the Assembly Marks on the Platform during the Term of this Agreement. Customer hereby grants to Assembly a limited, non-exclusive, royalty-free, non-transferable, non-sublicensable and non-assignable license to display the Customer Marks on its website for the Term of this Agreement.
ii) Developed Materials. Customer’s IP, Assembly’s IP, and all digital and intellectual property developed by either party for the purposes of this Agreement remains the exclusive property of that party, subject to, and in accordance with, the provisions set out in this Section. Unless expressly agreed otherwise, Customer acknowledges that any and all of the intellectual property created by Assembly in connection with the Payment Processing Services, including any enhancements or adaptations to the Assembly IP (“Assembly Developed Materials“), are and will remain the sole property of Assembly. Assembly acknowledges that any and all of the intellectual property created by Customer in connection with the Customer IP, including any enhancements or adaptations thereto (“Customer Developed Materials“), are and will remain the sole property of Customer. Each party grants to the other party a limited, non-exclusive, non-transferable, revocable, royalty free license, with no right of sub-license to use its Developed Materials (including any modified or updated versions of the Developed Materials), as may be created under this Section, provided it is solely for the purposes of performing its obligations under the Payment Processing Services Terms and Conditions; and it is only for the duration of the Term of the Agreement.
iii)Warranties. Both parties warrant that their respective IP, Marks, and Developed Materials are owned by or licensed by that party and do not infringe any Intellectual Property Rights of a third party.
Assembly hereby represents, warrants and covenants that (a) it is presently in compliance with, and will remain in compliance with, an approved version of the Payment Card Industry Data Security Standard, as the same may be amended, updated, replaced or augmented, and will perform the Payment Processing Service in compliance with the PCI Standards, (b) the Payment Processing Service will be provided in a workmanlike and professional manner and will conform with all descriptions thereof provided to Customer (including under this Agreement), and (c) the Payment Processing Services will be provided in compliance with all laws and regulations applicable to the Payment Processing Services.
OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10, THE PAYMENT PROCESSING SERVICES ARE PROVIDED “AS IS” OR “AS AVAILABLE” AND ASSEMBLY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PAYMENT PROCESSING SERVICES, THE GOODS, ASSETS OR SERVICES WHICH ARE THE SUBJECT OF A TRANSACTION, THAT THE PAYMENT PROCESSING SERVICES WILL MEET THE CUSTOMER’s REQUIREMENTS, OR THAT THE PAYMENT PROCESSING SERVICES OR THE ASSEMBLY SYSTEM WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE.
OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10, ASSEMBLY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASSEMBLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY ASSET ADVERTISED, OFFERED, OR SOLD BY CUSTOMER OR ANY PLATFORM BUYER OR PLATFORM SELLER, AND ASSEMBLY WILL NOT BE A PARTY TO ANY TRANSACTION.
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, A PLATFORM SELLER’s, PLATFORM BUYER’s OR SUBSCRIBER’s 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, ACT OF GOD, 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).
a) Consequential Damages. In no event shall Assembly be liable (under any theory or circumstance) for any lost profits, data, or any indirect, punitive, incidental, circumstantial, special, consequential, or exemplary damages arising out of, in connection with, or relating to this Agreement or the Payment Processing Services.
b) Customer Cap. Notwithstanding anything to the contrary set forth herein, in no event shall Assembly have any liability to Customer hereunder for any losses in excess of the aggregate amount of one hundred percent (100%) of the net revenue derived to Assembly from Customer hereunder during the twelve (12) month period preceding the date such claim(s) is/are made.
c) Buyer/Seller/Subscriber Cap. Customer shall include the limitation of liability language, as set forth in Attachment 4, in its Platform User Agreement.
a) Customer agrees to indemnify, defend, and hold harmless Assembly and its affiliates, and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns (collectively, “Representatives“), from 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 (collectively, “Losses“), arising directly or indirectly out of or relating to (i) any misrepresentation or breach by Customer of its representations and warranties set forth in this Agreement or the Payment Processing Services Terms and Conditions; (ii) any failure of Customer to comply with or breach of any covenant or agreement made by it in this Agreement or the Payment Processing Services Terms and Conditions; (iii) Customer’s gross negligence or willful/intentional misconduct; (iv) any claim by a Subscriber, Platform Buyer or a Platform Seller regarding the payment of any Brokerage Fees to Customer hereunder; and/or (v) any claim by any Subscriber, Platform Buyer, Platform Seller, Subscriber or any other Person or third party regarding any Transaction.
b) Assembly agrees to indemnify, defend, and hold harmless Customer and its affiliates and each of their respective Representative from any and all Losses arising directly or indirectly out of or relating to (i) any intentional misrepresentation or material breach by Assembly of its representations and warranties set forth in this Agreement; (ii) any failure of Assembly to comply with any covenant or agreement made by it in this Agreement or (iii) Assembly’s gross negligence or willful misconduct. Assembly’s indemnification obligations are subject to the liability limitations set forth in Section 11.
a) Agreement to Arbitrate. Notwithstanding anything herein to the contrary, all disputes, claims and controversies between (x) Assembly on the one hand, and (y) a Customer, Platform Buyer, Subscriber or Platform Seller, on the other hand, shall be resolved exclusively through final and binding arbitration, rather than in court, pursuant to this Section 13. This agreement to arbitrate is intended to be broadly interpreted. Customer shall include this Section 13, together with all defined terms used but not defined herein, in its Platform User Agreement.
b) Procedure. The choice of law set forth in Section 16(c) shall apply to any arbitration proceeding under this Section 13. 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:
(i)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 as defined by 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.]
(ii)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 non-appealable 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. PLATFORM BUYER, PLATFORM SELLER, SUBSCRIBER AND CUSTOMER AGREE THAT THEY EACH 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.
a) This Agreement will remain in full force and effect for one (1) year from the Effective Date (“Term“). Thereafter the Term shall automatically renew for additional one (1) year periods unless earlier terminated as set forth herein.
b) Either party may terminate this Agreement at any time for convenience, with or without reason or cause, upon thirty (30) days prior written notice. The thirty (30) day notice period begins upon a party’s receipt of such written notice. Either party may terminate this Agreement immediately in the event of a material breach of any of the terms or conditions set forth herein.
c) Upon the expiration or termination of this Agreement for any reason, Assembly will immediately (i) cease accepting any new orders for Payment Processing Services, and (ii) stop the creation of new accounts and prevent new credit/debit card charges. Customer shall remove any Assembly Marks, IP, logos or other references to Assembly from its platform, website, user flows, sales and advertising media, etc.
d) Termination of this Agreement will not (i) cancel pending Transactions, (ii) block legitimate merchant payouts for Goods, Assets or Services purchased prior to the termination date; (iii) relieve either party from its payment obligations hereunder, (iv) remove any chargeback liabilities, or (v) preclude Assembly from exercising any rights under this Agreement or the Assembly End User Agreement. Upon termination, Assembly will maintain User Data and Customer information stored by the Payment Processing Service as prescribed by its applicable data retention policies, applicable laws and regulations, and Section 8 (Confidential Information) and Section 9 (Data Security) of this Agreement.
e) The rights and obligations under this Agreement, which by their nature would reasonably continue beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. Without limiting the generality of the foregoing, the following sections will survive any termination or expiration of this Agreement: Section 7 (Fees and Payment), Section 8 (Confidentiality), Section 11 (Limitation of Liability), Section 12 (Indemnification), Section 13 (Disputes Involving Assembly) and Section 16 (General).
a) Scheduled Service Maintenance:Assembly plans several scheduled maintenance windows each year, usually early Sunday mornings (e.g., 12 a.m. – 4 a.m. Pacific Time) in order to maintain and increase the availability and performance of Payment Processing Services. Assembly shall make commercially reasonable efforts to provide Customer with at least forty-eight (48) hours prior notice via email to Customer’s Primary Contact at the email address provided by Customer to Assembly.
b) Unscheduled Service Outage Notification: In the event of unscheduled Assembly outages, Assembly will notify Customer, via email to the email address for the Primary Contact set forth below. Assembly will make commercially reasonable efforts to provide this notification within its goal of twelve (12) hours. Such notice shall include an estimated time of Services restoration, if Assembly can reasonably make such determination. Once the Assembly outage is resolved and services are restored, Assembly will provide a follow-up notice via email to Customer as soon as reasonably possible explaining the reason for the outage, the duration of the outage, and the corrective action taken by Assembly, if appropriate.
c) Primary Customer Contact: In order to obtain the notice, as set forth above, the Customer shall designate and provide to Assembly, a representative (“Primary Contact“), along with a contact phone number and email address, who shall act as the Customer’s support liaison. If the Primary Contact is not available, the Customer may designate alternate representatives until such time as the Primary Contact is again available provided it notifies Assembly of the names, phone numbers, and email addresses of the alternate Primary Contacts.
a) Modifications to the Agreement. Assembly reserves the right to update or modify this Agreement from time to time.
b) Entire Agreement. This Agreement and all incorporated attachments or exhibits constitute the entire agreement between the parties and replaces and supersedes any and all oral agreements between the parties, as well as any prior writings.
c) Governing Law and Jurisdiction. This Agreement will be governed in accordance with the laws of [US – the State of California] [Australia – the State of Victoria] [New Zealand] [the Republic of Singapore] [South Africa] and all claims arising from this Agreement shall be arbitrated in that jurisdiction.
d) 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.
e) 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.
f) Notices. All notices shall be delivered to the representative below at the address specified below, or as otherwise specified in writing by a party, and shall be deemed delivered on the date received, whether sent electronically or by overnight courier.
g) Assignment and Change of Control. Customer may not assign this Agreement, in whole or in part, to any other person or entity, including but not limited to any affiliate or subsidiary of the Customer, without the prior written consent of Assembly. In the event of a change of control of Customer’s business, as generally understood, Customer shall notify Assembly before such change of control occurs (closes). Customer’s right to use the Payment Processing Services shall not be sold or transferred to any other person or entity without the prior written consent of Assembly. Assembly may assign this Agreement upon notice to Customer. Any assignment or transfer in violation of this provision shall be void.
h) Independent Contractor. The relationship between Customer and Assembly is one of independent contractors. Neither Customer nor any of its employees, consultants, contractors or agents shall be agents, employees, partners or joint ventures of Assembly under the terms of the Agreement. Nothing in this Agreement shall create an agency, employment, partnership or joint venture relationship between Customer and Assembly.
I) Costs and expenses. Except as may be expressly provided for elsewhere in this Agreement, each party will be responsible for all costs and expenses incurred by it in performing its obligations under the Agreement.
j) Headings. The headings in this Agreement are for ease of reference only and shall not be taken into account in the construction or interpretation of any provision to which they refer
k) Force Majeure. If performance the Agreement is interfered with or delayed by an act of God, civil unrest, war, hostilities, terrorism, seizure or expropriation of assets (other than that caused by the actions or omissions of a party), or other destructive event outside a party’s immediate control (a “Force Majeure Event“), the affected party shall give written notice to the other party and the affected party shall be excused from such performance during, but not longer than, the continuance of such condition. Each party shall bear their own costs arising from the Force Majeure Event and shall take all reasonable steps to find ways to perform their obligations despite the Force Majeure Event. If the Force Majeure Event continues for more than fifteen (15) consecutive days, either party may immediately terminate the Agreement on giving written notice to the other party.
Customer acknowledges that it has read, understands and agrees to be bound by and comply with the terms and conditions of this Agreement and corresponding attachments and exhibits. The person signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below.
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1. Card Acceptance Rules. In order to accept card payments, Customer agrees to follow the applicable Card brand operating rules. Substantial portions of Payments Network/Card Brand Operating Rules agreements are available their respective websites:
2. Soft Descriptor Requirements: In accordance with card brand rules, Assembly is required to prefix the soft descriptor on each transaction with “ ASM* ”. Customer shall have the remaining 19 characters to identify themselves and describe the Transaction. Cardholders will see the following lines appear on their billing statements:
If Customer uses soft descriptors that are too confusing or is conducting large amounts of transactions, Assembly may require Customer to restructure it according to the suggestion above.
3. Card Brand Discrimination. Unless permitted by Card Brand Rules, Customer shall not engage in any practice that discriminates against or provides unequal treatment of any Card Brand relative to any other Card Brand.
4. Card Brand Marks. Customer may use Card Brand logos or marks on Customer’s promotional materials and website only to indicate that Cards are acceptable methods of payment. No Card brand logo shall be given special precedence (i.e. displayed in larger size or in color with other Card brands shown in grayscale).
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Payment Processing Services. Customer hereby authorizes and instructs Assembly to act as its payment facilitator and agent in connection with Subscription Transactions in accordance with the terms and conditions set forth in this Attachment 2 and the Agreement (collectively, the “Subscriber Payment Processing Services“). Capitalized terms not defined herein shall have the meaning set forth in the Agreement.
Required Information: In order to provide Payment Processing Services, Assembly is required to validate Customer’s identity with Third Party Service Providers. Customer will, at minimum, be asked for the following information:
By accepting this Agreement, Customer authorizes Assembly to share, retrieve and verify information about Customer and its Affiliates through properly vetted Third Party Service Providers to the extent required to provide Subscriber Payment Processing Services. Assembly may require that this information be updated from time to time.
Customer hereby authorizes Assembly to initiate credit entries to its Account for payment of part or all of the purchase price of any Goods, Assets or Services purchased from Customer by a Subscriber (the “Purchase Price“), and to debit Customer’s Account to discharge its obligations pursuant to this Agreement, which may include Transaction Fees payable to Assembly.
Assembly maintains a ledger that properly delineates the Customer 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. Customer will not receive interest or any other earnings on funds in Custodial Accounts. Customer irrevocably assign to Assembly all rights and legal interests to any interest or other earnings that accrue or are attributable to any of Customer’s funds in a Custodian Account. “Custodian Account” means funds received on behalf of Subscriber, 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 for the benefit of Customer.
Customer agrees that it 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. This list may be updated from time to time as necessary.
Assembly reserves the right, in its sole discretion, to refuse to complete any Transaction that Assembly has reason to believe is unauthorized or made by someone other than the Subscriber, may violate any law, rule or regulation, or if Assembly has reasonable cause not to honor it.
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 6 – “Prohibited Transactions” of the Payment Services Agreement. Transaction Funds Reversals include claims that Subscribers may file to dispute a payment or identify any unauthorized transactions. These complaints are made directly with Subscriber’s issuing bank and may result in a reversal that refunds up to the full Purchase Price of the Transaction back to the Buyer/Subscriber. If a Transaction is disputed or reversed by a Card Network, Assembly’s processor, or a Customer’s financial institution, or the Transaction was not authorized, unlawful, suspicious, or in violation of Section 6 (Prohibited Transactions), the Customer is fully liable for a Subscription Transaction Funds Reversal amount, as is the Seller for a Platform Transaction. For any Transaction resulting in a Transaction Funds Reversal, Assembly may withhold the Transaction Funds Reversal in a reserve or deduct the amount of the Transaction Funds Reversal and any associated fees or fines from Customer’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.
If Customer’s fraud or Chargeback rates become significant, Customer agrees to work with Assembly to immediately address the issue. Customer also understands and agrees that Assembly may delay or reject Transactions that Assembly deems potentially fraudulent. Customer also agrees to allow Assembly to share information about a Chargeback with the Subscriber, or the financial institution where Customer’s Account is held, to investigate or otherwise resolve a Chargeback.
To the extent allowed by applicable law, Customer grants to Assembly a security interest and right of set-off in any account created in connection with the Payment Processing Services including any reserve or any pending payouts that Assembly has received for processing pursuant to this Agreement. Customer agrees to execute and deliver any documents necessary to perfect and enforce this interest. Additionally, without prior notice, Customer agrees that Assembly may defer payout/restrict access to funds related to a disputed Transaction, or if payout has already occurred, directly debit Customer’s Account for the amount charged back.
Customer agrees to be bound by the terms and conditions of the Commercial Entity Agreement, provided to Customer by Assembly. This does not change any transaction arrangements, fees, or fulfilment structures between Customer and Assembly.
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BY SIGNING AGREEMENT, Customer AGREES TO include the following language in its Platform User Agreement:
And language regarding limitation of liability:
In no event shall Assembly be liable to any Platform Buyer, Platform Seller or Subscriber 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 ASSEMBLY’s MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY ANY PLATFORM BUYER, PLATFORM SELLER, OR SUBSCRIBER 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.
SO THERE MAY BE NO DOUBT, IN THE EVENT OF ANY CONFLICT BETWEEN THE AGREEMENT AND THE CUSTOMER’s PLATFORM USER AGREEMENT, THE AGREEMENT SHALL PREVAIL.
Failure of Customer to include this language in its Platform User Agreement shall result in a breach of Customer’s obligations under the Agreement.
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