End User Agreement


Effective as of May 31st, 2016


1. Payment Processing services

(“Customer”) has contracted with [PromisePay] (together with our affiliates, subsidiaries and divisions, collectively PromisePay or We or Us) to facilitate the payment process for Assets or Services Purchased and Sold via Customer’s online platform (the “Platform”). You (“You” or “Seller””) hereby authorise and instruct PromisePay to act as Your payment facilitator and agent in connection with Your sale of Assets or Services (as defined herein) via the Platform in accordance with the terms and conditions of this Agreement.


2. Definitions

  • “Account” means a depository account with a financial institution designated by You for the payment or receipt of monies pursuant to this Agreement.
  • “Agreement” means this PromisePay End User Agreement, the PromisePay Privacy Policy, the PromisePay Developer Documentation, the Commercial Entity Agreement (if applicable) which may be found on PromisePay’s website, as any of the foregoing may be amended or revised from time to time.
  • “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.
  • “Buyer” means a third party end user of Customer who Purchases, or offers, attempts or agrees to Purchase, any Assets or Services from You via the Platform.
  • “Card Network/Card Brand” means the network that powers credit card transactions. This includes, without limitation, Visa, MasterCard, American Express and Discover.
  • “Custodian Account” means funds received on behalf of Buyers, which will be co-mingled and held with funds belonging to other persons in one or more For Benefit Of (FBO) accounts at NAB Trustees (or successor Trustee as PromisePay may determine) on Customer’s behalf and or Platform Sellers behalf and for the benefit of the Customer and or platform seller.
  • “Customers.” Online marketplace entities or Platforms that contract PromisePay as their point of sale payment processor.
  • “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 PromisePay, acting as a payments facilitator and/or escrow agent, which services are intended to facilitate the completion of a Transaction.
  • “Platform User Agreement” means terms of use and other agreements between Customer and its end users setting forth the terms and conditions of the access to and use of the Platform, as the same may be amended from time to time.
  • “Purchase” shall be interpreted broadly to mean purchase, 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.
  • “Third Party Service Provider” means a separate business working with PromisePay to facilitate payment processing as well as preventing fraud and non-compliance with applicable laws.
  • “Transaction” means the Purchase and Sale of Assets or Services via the Platform.
  • “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, PromisePay’s processor, or a Customer’s financial institution. This term also includes payment reversals due to an unauthorized, unlawful, suspicious, contractually Prohibited Transaction.

3. Required Information

In order to provide Payment Processing services to You, PromisePay is required to validate
Your identity with Third Party Service Providers. No hard credit check (any credit check that might impact Your credit score negatively) is run, however You 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
    1. Full business name
    2. Business address
    3. Business EIN or ABN
    4. Business phone
  • By accepting this Agreement You authorise PromisePay to share, retrieve and verify information about You through properly vetted Third Party Service Providers to the extent required to provide Payment Processing services to You. You acknowledge that this may include history of past addresses and other data about You. We may require that Your information be updated from time to time.


4. Privacy Policy

You agree to PromisePay’s privacy policy which is available at promisepay.com/privacy and is incorporated by reference into this Agreement as if it were set forth here in its entirety. Any personal or payment information acquired during the course of PromisePay handling Your payments shall be handled with due care and used only according to the terms set forth in PromisePay’s Privacy Policy.


5. Authorisation

By entering Your payment information and buying or selling through the Platform, You authorise PromisePay to initiate credit entries to Your Account for payment of part or all of the purchase price of any Assets or Services purchased from you via the Platform (the “Purchase Price”), and to debit Your Account to discharge Your obligations pursuant to this Agreement and/or the Customers Platform User Agreement, which may include transaction fees payable to PromisePay (a “Transaction Fee”). Such payments may be made by direct debit, ACH via the ACH Agreement attached as an exhibit hereto or otherwise.


6. Funds Held for Benefit of Seller

PromisePay maintains a ledger that properly delineates the Seller for whom the funds are earmarked. PromisePay has sole discretion over the establishment and maintenance of any Custodian Accounts. PromisePay will hold such funds separate from PromisePay’s corporate funds and will not (i) use the funds for corporate purposes, (ii) make the funds available to creditors in the event of PromisePay’s bankruptcy or for any other purpose, and (iii) knowingly permit PromisePay’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.


7. Fees/Taxes

a. PromisePay 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. PromisePay 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 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 upsell 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, (38) pseudo pharmaceuticals, (39) quasi-cash or stored value, (37) securities brokers, (38) sexually-oriented or pornographic products or services, (39) shipping or forwarding brokers, (43) substances designed to mimic illegal drugs, (44) telemarketing, (40) timeshares, (47) online, mail, or telephone order tobacco or e-cigarette sales, (48) weapons and munitions (49) 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 (50) products/services intended to inflict or promote revenge, harassment, and other forms of abuse, humiliation and intimidation.


9. Right to Reject a Transaction

PromisePay reserves the right, in its sole discretion, to refuse to complete any Transaction that PromisePay has reason to believe is unauthorised or made by someone other than the Buyer, may violate any law, rule or regulation, or if PromisePay has reasonable cause not to honor it.


10. Transaction Funds Reversals and Disputes

“Transaction Funds Reversals” are payment reversals that can refund to a Platform Buyer or Subscriber up to the full amount of the Transaction Funds. This term includes “chargebacks”—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, PromisePay’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, PromisePay’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, PromisePay 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 PromisePay, including without limitation by direct debit or ACH. PromisePay assumes no liability for Transaction Funds Reversals or for any tooling or assistance PromisePay 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 PromisePay to immediately address the issue. Seller also understands and agrees that PromisePay may delay or reject Transactions that PromisePay deems potentially fraudulent. Seller also agrees to allow PromisePay to share information about a Chargeback with the payer and the payer’s Sellers, or the financial institution where Seller’s Account is held, to investigate or otherwise resolve a Chargeback.


12. Set Off/Security Interest

To the extent allowed by applicable law, Seller grants to PromisePay 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 PromisePay 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 PromisePay 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.


13. Termination

a) PromisePay reserves the right to terminate this Agreement at any time particularly if there is suspicion of fraud, prohibited usage, usage that may damage PromisePay’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 all remaining profits from completed sales shall be paid out to Sellers 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 PromisePay. Should this occur, You agree to discontinue use of PromisePay and any PromisePay trademarks. PromisePay will not be liable for any damages or responsible for any compensation in connection with the termination or suspension of the Payment Processing services.


14. Survival of Termination

Section 10 “Chargebacks and Disputes”, Section 11 “Fraud and Excessive Chargebacks” and Section 12 “Set Off/Security Interest” and Section 15 “Buyer/Seller Dispute Resolution” and Section 16 “Disputes Involving PromisePay” Section 17 “Liability” and Section 18 “Disclaimer” of this Agreement as well as any other of Your remaining obligations and any other terms necessary to enforce or address such obligations shall survive the termination of this Agreement for any reason.


15. Buyer/Seller Dispute Resolution

The following provisions apply to any payment dispute or other claim, controversy or dispute between You and a Buyer regarding a Transaction (collectively, a “Payment Claim”).

A. Negotiation
In the event of any Payment Claim, You and Buyer shall first attempt, in good faith, to resolve any such Payment Claim by negotiations among the parties.

B. Mediation

If a Payment Claim has not been resolved by negotiation pursuant to subsection (A) above within seventy-two (72) hours of initiation, you and Buyer shall submit the dispute to PromisePay for resolution in accordance with the dispute resolution procedures set out at www.promisepay.com/policies.

Once a Payment Claim becomes subject to this subsection (B), PromisePay 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 favor of You or the Buyer. You and Buyer agree to fully cooperate with PromisePay in its endeavor to resolve any Payment Claims. Without limiting the generality of the foregoing, You and Buyer shall promptly, and in any event within two (2) days of receipt of the same, respond to all inquiries by PromisePay regarding a Payment Claim and deliver to PromisePay any information or documents requested by PromisePay 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 PromisePay. If both You and the Platform Buyer agree to PromisePay’s recommended decision in writing then PromisePay shall disburse any monies previously withheld by PromisePay 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.

You and Buyer understand and agree that (i) PromisePay 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) PromisePay 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) PromisePay has no personal or financial interest in the subject matter of the Payment Claim. You and Buyer are advised to seek separate legal counsel during the dispute resolution process and before signing any final agreement.

YOU AND BUYER ALSO ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PROMISEPAY NOR ITS AFFILIATES NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, EQUITY HOLDERS, CONTRACTORS AND OTHER REPRESENTATIVES (COLLECTIVELY, IN THE SINGULAR, A “PROMISEPAY PARTY” AND IN THE PLURAL, THE “PROMISEPAY PARTIES”) SHALL HAVE ANY LIABILITY OF ANY KIND WHATSOEVER, ARISING FROM OR RELATING TO ANY PROMISEPAY PARTY’S ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH PROMISEPAY PARTY IN SUCH PROMISEPAY PARTY’S ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDED BY SUCH PERSON IN CONNECTION THEREWITH.

FURTHER EACH OF YOU 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 AFFILIATES OF ANY OF THE FOREGOING, FULLY AND COMPLETELY WAIVES, RELEASES, AND FOREVER DISCHARGES, THE PROMISEPAY 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 PROMISEPAY PARTY ARISING OUT OF OR RELATING TO SUCH PROMISEPAY PARTY’S ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH PROMISEPAY PARTY IN SUCH PROMISEPAY PARTY’S ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDED BY SUCH PERSON IN CONNECTION THEREWITH.

IN THE EVENT THE FOREGOING WAIVER IS NOT ENFORCEABLE FOR ANY REASON, THEN YOU AND BUYER HEREBY AGREE THAT THE PROMISEPAY PARTIES MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY PAYMENT CLAIM, OR ANY PROMISEPAY PARTY’S ACTIONS OR OMISSIONS IN CONNECTION WITH THIS SECTION 15, INCLUDING WITHOUT LIMITATION, ANY ACTIONS OR OMISSIONS OF SUCH PROMISEPAY PARTY IN SUCH PROMISEPAY PARTY’S ROLE AS A MEDIATOR/NEUTRAL INTERMEDIARY, OR ANY DECISION OR DETERMINATION RENDED BY SUCH PERSON IN CONNECTION THEREWITH SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE PAID OR PAYABLE FOR THE ASSETS OR SERVICES WHICH ARE THE SUBJECT OF THE TRANSACTION(S) GIVING RISE TO THE PAYMENT CLAIM.

C. Arbitration

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 You or by You to Buyer at any time after mediation has commenced. The choice of law set forth in Section 22 shall apply to any arbitration proceeding under this Section 15(C)./p>

2 .Forum and Rules for Arbitration.

[For contracts in Australia:]

[The Payment Claim shall be resolved by arbitration in accordance with the Australian Center for International Commercial Arbitration (“ACICA”) Arbitration Rules. The seat of arbitration shall be [Melbourne, Australia]. The arbitration shall be decided by a single arbitrator to be selected by the mutual consent of Buyer and You, provided, that if within seven (7) days after delivery by the initiating party of an Arbitration Notice, the parties have not reached agreement on the choice of a sole arbitrator and provided written evidence of such agreement to ACICA, the sole arbitrator shall be appointed by ACICA.]

[For contracts in United States:]

The Payment Claim shall be resolved by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The seat of arbitration shall be San Francisco, California. The arbitration shall be decided by a single arbitrator to be selected by the mutual consent of Buyer and You, provided, that if within seven (7) days after delivery by the initiating party of an Arbitration Notice, the parties have not reached agreement on the choice of a sole arbitrator and provided written evidence of such agreement to AAA, the sole arbitrator shall be appointed by AAA

[For contracts in Singapore:]

[The Payment Claim shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) for the time being in force, which SIAC Rules are deemed to be incorporated by reference in this clause, by a single arbitrator to be mutually agreed by Buyer and You, provided, that, if Buyer and You cannot come to an agreement in respect of the selection of the arbitrator within seven (7) days of delivery of an Arbitration Notice, such arbitrator shall be nominated by the Chairman of the SAIC, who shall serve as the “appointing authority” as such term is defined in SAIC. The seat of the arbitration shall be [____________], Singapore. The language of the arbitration shall be English.]

[For contracts in New Zealand:]

[The Payment Claim shall be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The arbitration shall be by one arbitrator to be agreed upon by the parties and if they should fail to agree within seven (7) days of the Arbitration Notice, then such arbitrator shall be appointed by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The seat of the arbitration shall be Wellington, New Zealand. The language of the arbitration shall be English]

3. Enforcement of Decisions; Misc.

The decision of the arbitrator shall be final and binding upon Buyer and You, and may be enforced in any court of competent jurisdiction, and neither Buyer nor You 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 You 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 PromisePay Interpleader Costs.

The parties further agree to indemnify or advance any required expenses, including attorneys’ fees, to PromisePay that arise from or relate to any Payment Claims initiated or brought voluntarily by either party where (a) PromisePay is requested to appear in connection with any claims brought by way of defense, including without limitation, by way of counterclaim, crossclaim, impleader, or third party claim, and (b) with respect to actions or proceedings where PromisePay 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, PromisePay 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 PromisePay: (i) receives a final non-appealable order of a court of competent jurisdiction or a final non-appealable arbitration decision directing delivery of the Escrow Property or any portion thereof, (ii) receives a written agreement executed by each of You and Buyer directing delivery of the Escrow Property or the relevant portion thereof, in which event PromisePay shall be authorized to disburse the Escrow Property or the relevant portion thereof in accordance with such final court order, arbitration decision, or agreement, or (iii) files an interpleader action in any court of competent jurisdiction, and upon the filing thereof, PromisePay 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. PromisePay shall be entitled to act on any such agreement, court order, or arbitration decision without further question, inquiry, or consent.


16. Disputes Involving PromisePay.

A. Agreement to Arbitrate.

Notwithstanding anything herein to the contrary, all disputes, claims and controversies between (x) PromisePay on the one hand, and (y) You, Customer, Buyer, on the other hand, shall be resolved exclusively through final and binding arbitration, rather than in court, pursuant to this Section 16. This agreement to arbitrate is intended to be broadly interpreted.

B. Procedure.

The choice of law set forth in Section 22 shall apply to any arbitration proceeding under Section 15(c) and this Section 16. The arbitration shall be conducted in English and shall be finally settled in accordance with the [Australian Center for International Commercial Arbitration (ACICA)] [American Arbitration Association (AAA)] [Singapore International Arbitration Centre (SIAC)] [Arbitrators’ and Mediators’ Institute of New Zealand Inc.] by:

  1. 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’ and Mediators’ Institute of New Zealand Inc., who shall serve as the “appointing authority” as such term is defined in the Arbitrators’ and Mediators’ Institute of New Zealand Inc.] [AAA, who shall serve as the “appointing authority” as such term is defined in the Commercial Arbitration Rules of the AAA.]
  2. 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 PromisePay 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-Individualized Relief.

YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST PROMISEPAY ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS PROMISEPAY 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 PROMISEPAY USERS.


17. Liability

In no event shall PromisePay or any of its Representatives be liable to you for any Losses, of any kind whatsoever, arising out or relating to their respective use of, or inability to use, the Payment Processing services, regardless of the legal theory under which such Losses are sought. IN THE EVENT THE FOREGOING IS NOT ENFORCEABLE FOR ANY REASON, THEN PROMISEPAY’S MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY YOU ARISING FROM OR RELATING TO THE Payment Processing 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 PromisePay 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 PROMISEPAY 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 PROMISEPAY SYSTEMS WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROMISEPAY 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.

PROMISEPAY 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 PROMISEPAY BE LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, THE PLATFORM OR BUYER’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 PROMISEPAY 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] [Singapore] [New Zealand] [the United States] (i.e. You are [an Australian] [a Singaporean] [a New Zealand] [an American] 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 PromisePay.
  • Your use of the Platform and PromisePay as well as Your Transactions all comply with the laws and regulations applicable to You and Your business.

20. Commercial Entity

In the event i) You process over $100,000 in annual sales, or ii) PromisePay’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 PromisePay. This does not change any transaction arrangements, fees, or fulfilment structures between You, PromisePay, 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 PromisePay 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.


22. General

a) Modifications to the Agreement. PromisePay reserves the right to update or modify this Agreement at any time with notice that PromisePay deems reasonable according to the extent of the changes. Notice may include notice on our website or the Platform. Any use of our Payment Processing services after publication of such notice shall constitute Your acceptance of the modifications.

b) Governing Law. This Agreement will be construed in accordance with and governed by the laws of [US -][the State of California][Australia -][the State of Victoria][New Zealand][the Republic of Singapore], 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.