End User Agreement
Effective as of July 11th, 2016
1. PAYMENT PROCESSING SERVICES
carsales.com Limited (ABN 91 074 444 018) (“Customer”) has contracted with PromisePay Pty Ltd (ABN 49 167 436 722) trading as Assembly Payments Pty. Ltd. ( “Assembly” or “We” or “Us”) to facilitate the payment process for Assets or Services Purchased and Sold where the parties to the Transaction have been introduced via the Customer’s online platform (the “Platform”).
- If you are a Platform Seller, you hereby authorise and instruct Assembly to act as Seller’s payment facilitator and agent in connection with Seller’s sale of Assets or Services (as defined herein) to Buyers introduced via the Platform in accordance with the terms and conditions of this Agreement.
- If you are a Buyer or a Subscriber, 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, any use of the Payment Processing services is an agreement between either (i) the Buyer and/or Subscriber and Assembly, on the one hand, or (ii) the Platform Seller and Assembly, on the other hand, and to the maximum extent permitted by law, Buyers and Platform Sellers do not have any right to claim against the Customer under this Agreement. Where a Subscriber is utilising the Payment Processing services, the Platform User Agreement will apply together with the terms of this Agreement, provided that to the extent of any inconsistency this Agreement will prevail with respect to the Payment Processing services and the Platform User Agreement with the Customer will prevail with respect to Subscriber’s relationship solely with Customer and use of the Platform.
- “Account” means a depository account with an ADI financial institution designated by Seller for the payment or receipt of monies pursuant to this Agreement.
- “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.
- “Brokerage Fee” is defined in Section 7.
- “Buyer” or
- “Platform Buyer” means a third party end user of Customer who Purchases, or offers, attempts or agrees to Purchase, any Assets or Services from the Seller after having been introduced the Platform.
- “Cardholder” refers to the Buyer using a credit card or a debit card for payment.
- “Card Network/Card Brand” means the network that powers credit card transactions. This includes, without limitation, Visa, MasterCard, American Express and Discover.
- “Custodian Account” means one or more For Benefit Of (FBO) accounts at NAB Trustees (or successor Trustee as Assembly may determine) established by Assembly for the purpose of processing Transactions.
- “Escrow Transaction” means where Assembly holds any funds as trustee on behalf of a Platform Buyer and Platform Seller, where those funds are deposited by a Platform Buyer via the Payment Processing services as part of a Transaction.
- “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.
- “Marketplace Transaction” means a transaction involving the Purchase and Sale of Assets and/or Services by Platform Buyers and Platform Sellers introduced using the Customer’s Platform
- “Payment Claims” means as defined in Section 15.
- “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 Seller“ or
- “Seller” means a third-party end user of Customer who Sells or offers to Sell, any Assets 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.
- “Prohibited Transaction” means as defined in Section 8.
- “Purchase” shall be interpreted broadly to mean purchase, obtain, lease, license or otherwise acquire or assume.
- “Purchase Price” means as defined in Section 5.
- “Related Bodies Corporate” has the meaning given to it in the Corporations Act 2001 (Cth).
- “Representatives” means a person’s affiliates, and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns.
- “Sell” or
- “Sale” shall be interpreted broadly to mean to sell, transfer, lease, license, hypothecate or otherwise assign or dispose of.
- “Third Party Service Provider” means a separate business working with Assembly to facilitate payment processing as well as preventing fraud and non-compliance with applicable laws.
- “Subscriber” means a Person who Purchases, or offers, attempts or agrees to Purchase any Assets directly from Customer or its Related Bodies Corporate.
- “Subscriber Transaction” means a transaction between Customer (or one or more of its Related Bodies Corporate), on the one hand, and one of its Subscribers, on the other hand, whereby Customer (or one or more of its Related Bodies Corporate) Sells or agrees to Sell any Assets or Services to a Subscriber, and the Subscriber renders, or agrees to render, payment to Customer therefore.
- “Transaction” means a Marketplace Transaction or a Subscriber Transaction.
- “Transaction Funds” means any amount paid by a Buyer or Subscriber in consideration of any Purchase of Assets.
- “Transaction Funds Reversals” means as defined in Section 10.
- “Transaction Fee” means as defined in Section 5.
- “You” or
- “Your” is a reference to a Platform Seller or a Buyer or a Subscriber.
3. REQUIRED INFORMATION
A. Platform Sellers
In order to provide Payment Processing services to the Platform Seller, Assembly is required to validate Platform Sellers’ identity with Third Party Service Providers. No hard credit check (any credit check that might impact Platform Sellers’ credit score negatively) is run, however Platform Sellers will, at minimum, be asked for the following information:
- 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, 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
- Any additional information as required from time to time by Assembly or Customer from time to time (for example, identity verification in certain circumstances).
By accepting this Agreement each Platform Seller authorises Assembly to share, retrieve and verify information about Platform Seller through and with Customer and properly vetted Third Party Service Providers 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 data about Platform Seller. We may require that Platform Seller’s information be updated from time to time.
B. Buyers and Subscribers
In order for Buyers or Subscribers to utilise the Payment Processing services, you will need to provide the following information:
- Full legal name
- Email Address
- Payment details
- Any additional information as required from time to time by Assembly or Customer from time to time (for example, identity verification or payment verification in certain circumstances).
By accepting this Agreement each Buyer and Subscriber authorises Assembly to share, retrieve and verify information about them through and with Customer and properly vetted Third Party Service Providers to the extent required to provide the Payment Processing services. Each Buyer and Subscriber acknowledges that this may include history of past addresses and other data about Buyer or Subscriber. We may require that Your information be updated from time to time.
By Platform Sellers entering their payment information and selling to Buyers introduced via the Platform, Platform Sellers agree to enter into and be bound by this Agreement (as if they had manually executed the same) and hereby authorise Assembly to initiate credit entries to their Account for payment of part or all of the purchase price of any Assets or Services purchased from Platform Sellers via the Platform (the “Purchase Price”), and to debit Platform Seller’s Account to discharge Platform Seller’s obligations pursuant to this Agreement and the Platform User Agreement, which may include transaction fees payable to Assembly (a “Transaction Fee”) and a Brokerage Fee payable to Customer. Such payments may be made by direct debit, ACH via the ACH Agreement available at https://Assembly.com/policies/direct-debit-request-service-agreement/.
By Platform Buyers and Subscribers utilising the Payment Processing services, they agree to enter into and be bound by this Agreement (as if they had manually executed the same), and where the transaction is an Escrow Transaction, Platform Buyers agree to have funds transferred to and held in the Custodian Account maintained by Assembly for the purpose of payment to the Platform Seller to complete a Transaction. Assembly is hereby authorised by the Platform Buyer to release any funds held upon instruction by Platform Buyer to release such funds to the Platform Seller. Further, Platform Buyers hereby agree that in the event that Platform Buyer fails to respond within seven (7) days of a request for payment release then Platform Buyer shall be deemed to have consented to such release and Assembly will be authorised to release the funds to Platform Seller where delivery of the Asset or Service is reasonably considered to have been completed.
6. FUNDS HELD FOR BENEFIT OF SELLER
Assembly maintains a ledger that properly delineates the Seller for whom the funds are earmarked. Assembly has sole discretion over the establishment and maintenance of any Custodian Accounts. Assembly will hold such funds separate from Assembly’s corporate funds and will not (i) use the funds for corporate purposes, (ii) make the funds available to creditors in the event of Assembly’s bankruptcy or for any other purpose, and (iii) knowingly permit Assembly’s creditors to seize said funds. You will not receive interest or any other earnings on funds in Custodial Accounts. You irrevocably assign to Us all rights and legal interests to any interest or other earnings that accrue or are attributable to any of Your funds in a Custodian Account.
a. Assembly charges a Transaction Fee for each Transaction. The Transaction Fee will be paid by Customer on Your behalf out of the brokerage fee payable by You to Customer pursuant to the Customers Platform User Agreement (the “Brokerage Fee”). You hereby authorise and direct Promise Pay to deduct the Brokerage Fee from the Purchase Price and remit such amount to Customer. Once paid, Transaction Fees are non-refundable.
b. Assembly is not responsible for withholding or payment of any sales, use, personal property or other governmental tax or levy imposed on any Assets or Services purchased or sold through the Platform or otherwise arising from any Transaction.
8. PROHIBITED TRANSACTIONS
You agree You will not use the Payment Processing services for, or otherwise accept or make payments in connection with the following businesses, business activities or business practices: (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 upset 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 monetised, 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 reason to believe is unauthorised or made by someone other than the Buyer or Subscriber, may violate any law, rule or regulation, 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 unauthorised 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 unauthorised, unlawful, suspicious, or contractually Prohibited Transaction in violation of Section 8 – “Prohibited Transactions”. These complaints are made directly with the Buyer’s or 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 or Subscriber, as applicable. If a Transaction is disputed or reversed by a Card Network, Assembly’s processor, or a Seller’s financial institution, or the Transaction was not authorised, unlawful, suspicious, or in violation of Section 8 – “Prohibited Transactions”, the 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 withhold the Transaction Funds Reversal in a reserve or deduct the amount of the Transaction Funds Reversal and any associated fees or fines from Seller’s Account or other funding source registered with Assembly, including without limitation by direct debit or ACH. Assembly assumes no liability for Transaction Funds Reversals or for any tooling or assistance Assembly provides to prevent or fight Transaction Funds Reversals.
11. FRAUD OR EXCESSIVE CHARGEBACKS
If Seller’s fraud or Chargeback rates become significant, Seller agrees to work with Assembly to immediately address the issue. Seller, Buyer and Subscriber each also understand and agrees that Assembly may delay or reject Transactions that Assembly deems potentially fraudulent. You also agree to allow Assembly to share information about a Chargeback with the other parties to the Transaction the Customer, the financial institution and other Third Party Service Providers involved in the Transaction, to investigate or otherwise resolve a Chargeback.
12. SET OFF/SECURITY INTEREST
To the extent allowed by applicable law, Seller grants to Assembly a security interest and right of set-off in any account created through Seller’s use of the Platform including any reserve or any pending payouts that Assembly has received for processing pursuant to this Agreement. Seller agrees to execute and deliver any documents necessary to perfect and enforce this interest. Additionally, without prior notice, Seller agrees that Assembly may defer payout/restrict access to funds related to a disputed Transaction, or if payout has already occurred, directly debit Seller’s Account for the amount charged back.
Additionally, without prior notice, Buyer and Subscriber each agrees that Assembly may defer any Buyer or Subscriber refund request/restrict access to funds related to a disputed Transaction. Buyer and Subscriber each acknowledges that once it has issued an instruction to payout any Transaction Funds to the Platform Seller or Customer, the instruction is irrevocable and the Buyer or Subscriber will not be entitled to request a refund of those Transaction Funds from Assembly.
a) Assembly reserves the right to terminate this Agreement at any time particularly if there is suspicion of fraud, prohibited usage, usage that may damage Assembly’s brand or reputation, or excessive chargebacks.
b) You may terminate this Agreement at any time by halting Your use of the Platform and notifying the Customer. Any pending purchases or sales will be cancelled and funds will be dealt with in accordance with the dispute resolution process set out in clause 15. Any remaining profits from completed sales shall be paid out to Platform Seller or Customer, as applicable, according to the Transaction instructions.
c) Upon termination, Your account will be flagged as dormant and You will no longer have the ability to use Assembly. Should this occur, You agree to discontinue use of Assembly and any Assembly trademarks. Assembly will not be liable for any damages or responsible for any compensation in connection with the termination or suspension of the Payment Processing services.
14. SURVIVAL OF TERMINATION
Section 10 “Transaction Funds Reversals and Disputes”, Section 11 “Fraud and Excessive Chargebacks” and Section 12 “Set Off/Security Interest” and Section 15 “Buyer/Seller Dispute Resolution” and Section 16 “Disputes Involving Assembly” Section 17 “Liability”, and Section 18 “Disclaimer” and Section 22 “General” of this Agreement as well as any other of Your remaining obligations and any other terms necessary to enforce or address such obligations shall survive the termination of this Agreement for any reason.
15. BUYER/SELLER DISPUTE RESOLUTION
The following provisions apply to any payment dispute or other claim, controversy or dispute between Platform Seller and a Buyer regarding a Transaction (collectively, a “Payment Claim”).
In the event of any Payment Claim, Platform Seller and Buyer shall first attempt, in good faith, to resolve any such Payment Claim by negotiations among the parties.
If a Payment Claim has not been resolved by negotiation pursuant to subsection (A) above within seventy-two (72) hours of initiation, Platform Seller and Buyer 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 subsection (B), 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 in favour of Platform Seller or the Buyer. Platform Seller and Buyer agree to fully cooperate with Assembly in its endeavour to resolve any Payment Claims. Without limiting the generality of the foregoing, Platform Seller and Buyer shall promptly, and in any event within two (2) days of receipt of the same, respond to all inquiries by Assembly regarding a Payment Claim and deliver to Assembly any information or documents requested by Assembly regarding any Payment Claim or underlying Transaction, including without limitation, (a) proof of delivery of the Assets or Services, (b) a description of the Assets or Services, (c) a copy of the receipt provided to the Buyer, and (d) any other information or documents related to the Transaction reasonably requested by Assembly. If both Seller and the Platform Buyer agree to Assembly’s recommended decision in writing then Assembly shall disburse any monies previously withheld by Assembly in connection with such Payment Claim in accordance with such decision.
So there may be no doubt, the subject matter for determination in any decision covered by this Section 15 shall be limited to the 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.
Platform Seller and Buyer understand and agree that (i) Assembly will act as a neutral intermediary/mediator in connection with the resolution of the Payment Claim and, as such, will not give legal advice to either party; (ii) Assembly in its role as a neutral intermediary/mediator acts as an independent contractor and not as an agent of or in any capacity for any party; and (iii) Assembly has no personal or financial interest in the subject matter of the Payment Claim. Platform Seller and Buyer are advised to seek separate legal counsel during the dispute resolution process and before signing any final agreement.
PLATFORM SELLER AND BUYER ALSO ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Assembly NOR ITS RELATED BODIES CORPORATE NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, EQUITY HOLDERS, CONTRACTORS AND OTHER REPRESENTATIVES (COLLECTIVELY, IN THE SINGULAR, A “DESIGNATED PARTY” AND IN THE PLURAL, THE “DESIGNATED PARTIES”) SHALL HAVE ANY LIABILITY OF ANY KIND WHATSOEVER, ARISING FROM OR RELATING TO ANY DESIGNATED PARTY’S ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH DESIGNATED PARTY IN SUCH DESIGNATED PARTY’S ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDERED BY SUCH PERSON IN CONNECTION THEREWITH.
FURTHER EACH OF PLATFORM SELLER AND BUYER, ON BEHALF OF YOURSELVES AND EACH OF YOUR SUCCESSORS AND PERMITTED ASSIGNS, AND THE RESPECTIVE EQUITY HOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND RELATED BODIES CORPORATE OF ANY OF THE FOREGOING, FULLY AND COMPLETELY WAIVES, RELEASES, AND FOREVER DISCHARGES, THE DESIGNATED 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 PLATFORM SELLER OR BUYER, MAY NOW OR IN THE FUTURE HAVE AGAINST ANY DESIGNATED PARTY ARISING OUT OF OR RELATING TO SUCH DESIGNATED PARTY’S ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH DESIGNATED PARTY IN SUCH DESIGNATED 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 PLATFORM SELLER AND BUYER HEREBY AGREE THAT THE DESIGNATED PARTIES MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY PAYMENT CLAIM, OR ANY DESIGNATED PARTY’S ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH DESIGNATED PARTY IN SUCH DESIGNATED 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 ASSETS OR SERVICES WHICH ARE THE SUBJECT OF THE TRANSACTION(S) GIVING RISE TO THE PAYMENT CLAIM.
1. Agreement to Arbitrate.
All Payment Claims, which are not settled amicably by mediation under subsection (B) shall be exclusively settled by final and binding arbitration, rather than by a court, which shall be initiated upon written notification (“Arbitration Notice”) by Buyer to Platform Seller or by Platform Seller to Buyer at any time after mediation has commenced. The choice of law set forth in Section 22(b) shall apply to any arbitration proceeding under this Section 15(C).
2. Forum and Rules for Arbitration.
The Payment Claim shall be resolved by arbitration in accordance with the Australian Center for International Commercial Arbitration (“ACICA”) Arbitration Rules. The seat of arbitration shall be Melbourne, Australia. The arbitration shall be decided by a single arbitrator to be selected by the mutual consent of Buyer and Platform Seller, provided, that if within seven (7) days after delivery by the initiating party of an Arbitration Notice, the parties have not reached agreement on the choice of a sole arbitrator and provided written evidence of such agreement to ACICA, the sole arbitrator shall be appointed by ACICA.
3. Enforcement of Decisions; Misc.
The decision of the arbitrator shall be final and binding upon Buyer and Platform Seller, and may be enforced in any court of competent jurisdiction, and neither Buyer nor Platform Seller 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 Buyer and Platform Seller 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.
D. Refund for Assembly Interpleader Costs.
The parties further agree to indemnify or advance any required expenses, including attorneys’ fees, to Assembly that arise from or relate to any Payment Claims initiated or brought voluntarily by either party where (a) Assembly is requested to appear in connection with any claims brought by way of defence, including without limitation, by way of counterclaim, crossclaim, imp leader, or third party claim, and (b) with respect to actions or proceedings where Assembly is requested to appear as a witness in any mediation or arbitration proceeding.
E. Treatment of Escrow Property.
In the event that the Payment Claim involves Escrow Services, Assembly may, at its option, continue to retain any cash or other property held in escrow at the time such Payment Claim is made which relates to or is the subject of such Payment Claim (“Escrow Property”) until Assembly: (i) receives a final non-appealable order of a court of competent jurisdiction or a final non-appealable arbitration decision directing delivery of the Escrow Property or any portion thereof, (ii) receives a written agreement executed by each of Platform Seller and Buyer directing delivery of the Escrow Property or the relevant portion thereof, in which event Assembly shall be authorised to disburse the Escrow Property or the relevant portion thereof in accordance with such final court order, arbitration decision, or agreement, or (iii) files an interpleader action in any court of competent jurisdiction, and upon the filing thereof, Assembly shall be relieved of all liability as to the Escrow Property and shall be entitled to recover attorneys’ 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.
F. Subscriber Disputes.
So there may be no doubt, the provisions set forth in this Section 15 shall not apply to any dispute between a Customer (and/or its Related Bodies Corporate) and a Subscriber, which will be resolved pursuant to the terms and conditions of the Platform User Agreement regarding the Assets or Services giving rise to such Subscriber Transaction. Assembly will not be party to such dispute; provided, that if Assembly is named as a party to such dispute it shall be resolved in accordance with Section 16 hereof.
16. DISPUTES INVOLVING PROMISEPAY
A. Agreement to Arbitrate.
Notwithstanding anything herein to the contrary, all disputes, claims and controversies between (x) Assembly on the one hand, and (y) Platform Seller and/or Platform Buyer and/or Subscriber, on the other hand, (and/or to the extent related to the subject matter of this Agreement, any of the Related Bodies Corporate or the respective Representatives of any of the foregoing persons identified in subsection (x) or (y)), shall be resolved exclusively through final and binding arbitration, rather than in court, pursuant to this Section 16. This agreement to arbitrate is intended to be broadly interpreted.
The choice of law set forth in Section 22(b) shall apply to any arbitration proceeding under Section 15(c) and this Section 16. The arbitration shall be conducted in English and shall be finally settled in accordance with the Australian Center for International Commercial Arbitration (ACICA) as follows:
- If the amount in controversy is less than AUD $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.
- If the amount in controversy is equal to or greater than AUD $100,000, then such dispute shall be decided by a panel of three (3) arbitrators, with Assembly and the other party to the dispute each selecting an arbitrator and the two arbitrators so selected appointing a third arbitrator.
The decision of the arbitrator(s) shall be final and binding upon the parties, and may be enforced in any court of competent jurisdiction, and no party shall seek redress against the other in any court or tribunal, except solely for the purpose of obtaining execution of the arbitral award or of obtaining a judgment consistent with the award. The arbitrator shall be guided by the terms and conditions of this Agreement which shall be binding upon them.
Each party shall bear its own costs and expenses associated with the arbitration and shall each pay an equal share of the arbitrators’ 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-Individualised 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 FAVOUR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER Assembly USERS.
In no event shall Assembly or any of its Related Bodies Corporate or any of their respective Representatives be liable to You for any Losses, of any kind whatsoever, arising out or relating to Your 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 (together with its Related Bodies Corporate and any of their respective Representatives) MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY YOU ARISING FROM OR RELATING TO THE Payment Processing serviceS SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE PAID OR PAYABLE FOR THE ASSETS OR SERVICES WHICH ARE THE SUBJECT OF THE TRANSACTION(S) GIVING RISE TO THE PAYMENT CLAIM. In no event shall Assembly (or any of its Related Bodies Corporate or any of their respective Representatives) 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 ASSETS OR SERVICES WHETHER THE AGREEMENTS BETWEEN THE PARTIES PROPERLY AND LEGALLY TRANSFER OWNERSHIP, OR ANY OTHER ASPECT OF ANY OR ALL OF THE AGREEMENTS BETWEEN THE PARTIES.
Assembly DOES NOT PROVIDE ANY ENDORSEMENT OF 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, ANY FINANCIAL INSTITUTION, ANY PAYMENT SYSTEM, ANY THIRD PARTY SERVICE PROVIDER, ANY PROVIDER OF TELECOMMUNICATIONS SERVICES, INTERNET ACCESS OR COMPUTER EQUIPMENT OR SOFTWARE, ANY MAIL OR DELIVERY SERVICE OR ANY PAYMENT OR CLEARING HOUSE SYSTEM OR FOR ANY CIRCUMSTANCES BEYOND Assembly CONTROL (INCLUDING BUT NOT LIMITED TO, FIRE, FLOOD OR OTHER NATURAL DISASTER, WAR, RIOT, STRIKE, TERRORISM, ACT OF CIVIL OR MILITARY AUTHORITY, EQUIPMENT FAILURE, COMPUTER VIRUS, INFILTRATION OR HACKING BY A THIRD PARTY, OR FAILURE OR INTERRUPTION OF ELECTRICAL, TELECOMMUNICATIONS OR OTHER UTILITY SERVICES).
19. REPRESENTATIONS OF USER
You agree, and hereby represent and warrant, that:
- You are at least 18 years of age, OR You are at least 13 years of age and have the consent of a parent or guardian to use the Platform.
- You have the authority to enter into and perform according to this Agreement.
- You are authorised to conduct business in Australia (i.e. You are an Australian citizen, legal resident, or business entity with the authorisation to conduct business in Your respective state).
- The information You provide pursuant to this Agreement is complete and correct as to the best of Your knowledge.
- You shall fulfil the obligations of any Sale or Transaction You incur on the Platform or through the use of Assembly.
- Your use of the Platform and Assembly as well as Your Transactions all comply with the laws and regulations applicable to You and Your business.
20. COMMERCIAL ENTITY
In the event i) You process over AUD$100,000 in annual sales, or ii) Assembly’s bank partner otherwise requires it, You agree to be bound by the terms and conditions of the Commercial Entity Agreement, provided to You by Assembly. This does not change any transaction arrangements, fees, or fulfilment structures between You, Assembly, and the Customer.
21. PAYMENT CARD INDUSTRY STANDARDS
Seller represents and warrants that it shall implement and maintain certification of Payment Card Industry Data Security Standard, as the same may be amended, updated, replaced or augmented (the “PCI Standard”). If during the term of the Agreement, Seller undergoes, or has reason to believe that it will undergo, an adverse change in its certification or compliance status with the PCI Standard and/or other material payment card industry standards, it will promptly notify Assembly of such circumstances. Seller shall maintain and protect in accordance with all applicable laws and PCI Standard the security of all cardholder data within its possession or control. Seller will provide reasonable care and efforts to detect fraudulent credit card activity in connection with any Transactions.
a) Modifications to the Agreement. Assembly reserves the right to update or modify this Agreement at any time with notice that Assembly deems reasonable according to the extent of the changes. Notice may include notice on our website or the Platform. Any use of our Payment Processing services after publication of such notice shall constitute Your acceptance of the modifications.
b) Governing Law. This Agreement will be construed in accordance with and governed by the laws of Australia -the State of Victoria, without reference to their rules regarding conflicts of law.
c) Waiver. If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.
d) Severability. If any court determines that any provision of this Agreement is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of this Agreement invalid or unenforceable and such provision shall be modified, amended, or limited only to the extent necessary to render it valid and enforceable.