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Purchase Payment Agreement

 

HIGHLIGHTS:

  • The Installment Feature allows you to pay for your purchase over 4 equal installments due every 2 weeks.
  • You must be over 18 years old (19 years old in Alabama or if you are a ward of the state in Nebraska) and be the authorized holder of an eligible US-issued debit/credit card to apply (see Section 9.1 for eligibility criteria).
  • All orders are subject to approval – for example, if you have any overdue payments, the Installment Feature will not be available to you (see Section 7.1). 
  • You can make repayments any time BEFORE the due date. Otherwise, payments will be automatically attempted on the scheduled dates from your card. If a payment is not processed on or before the due date, late fees will apply – initial $8 late fee applied the day after the due date, and a further $8 if the payment remains unpaid 7 days after the due date (late fees are capped at 25% of the original order value).
  • The delivery/quality of goods and all refunds is the responsibility of the retailer where you make the purchase. 
  • You are agreeing to resolve all disputes through BINDING ARBITRATION and WAIVING YOUR RIGHT TO BRING A CLASS ACTION (see Section 12.4 below)

 

LAST UPDATED: 30 August 2018

 

Please read this Installment Feature Agreement (the “Agreement”) carefully. By clicking to accept this Agreement and purchasing a good or service from the Seller, you agree to be bound by this Agreement. As used in this Agreement, the term “Sites” includes any physical store of the Seller, the website of the Seller, pages within this website, any equivalent mirrors, replacements, substitutes or backup websites, and pages that are associated with these websites. The headings contained in this document are for reference purposes only. You should print a copy of this Agreement for your records.

This Agreement provides that all Disputes (as defined below) between you and us will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED in Section 12.4 (“Arbitration”) below.  Please review Section 12.4 for the details regarding your agreement to arbitrate any Disputes with us.

 

Please note that, upon your purchase of a good or service from us, this Agreement will be assigned to our service provider, Afterpay US, Inc. (“Afterpay”).  Once assigned, all references to “we” “us” or the “parties” will mean or include reference to Afterpay.  This means that the binding arbitration and class action waiver provisions described in Section 12.4 (“Arbitration”) below will apply to all Disputes between you and Afterpay.

 

1.              Parties to this Agreement

This Agreement is a contract between you (“you”, “your”) and the Seller (“we”, “us”, “our”). For the avoidance of doubt, the Seller means the owner of the website or store from which you are purchasing goods or services. For a list of Sellers, please visit www.afterpay.com/shop. It sets out the terms and conditions that apply to your purchase of goods or services on the Sites using the extended repayment plan feature described in Section 5 below (the “Installment Feature”). You agree that your acceptance of these terms and conditions and use of the Installment Feature shall constitute your acceptance of this Agreement.

If you do not want to be bound by this Agreement, you must not make a purchase using the Installment Feature.

2.              Our Relationship

By placing an order with us using the Installment Feature, you agree to pay to us, in accordance with this Agreement, the agreed amounts on the dates outlined in your Payment Schedule (as defined below), plus any additional applicable Late Fees (as defined below) if you miss a payment to us on or before the scheduled date, as set out in Section 5 below.

3.              Changes to this Agreement

3.1           We may amend this Agreement from time to time. If we make any changes to this Agreement that we deem to be material, we or Afterpay will make a reasonable effort to inform you of such changes, but it is your responsibility to review the Agreement made available via the Afterpay website from time to time to see if it has changed. If you do not agree with the changes, do not place any further orders using the Installment Feature.  

3.2           We will not change any terms and conditions for an existing order that has been accepted; the terms and conditions that will apply to an accepted order are the terms and conditions that applied at the time you made the order.

4.              Transfers or Assignments

4.1           You cannot transfer or assign any rights you may have under this Agreement without our prior written consent.

4.2           You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent.

4.3           We may transfer or assign this Agreement, and any rights under this Agreement, to a third party without notice to you or your consent.  If, after such assignment, you desire to return goods you purchased from us, or have a complaint regarding your order, please contact us directly, as set forth in Sections 8 and 12, respectively.  Note that any questions or complaints regarding the Installment Feature should be directed to Afterpay.

5.              Description of the Installment Feature

5.1           To use the Installment Feature, including making changes to your payment method and other personal information, you must create an account with our service provider, Afterpay (your “Afterpay Account”).

5.2           The Installment Feature enables you to pay for goods or services sold through the Sites in installments. Please note that Afterpay may, in its sole discretion, set certain minimum and maximum purchase amounts to use the Installment Feature.  A minimum purchase amount of $35 will apply. We may, in our discretion, apply a higher minimum purchase amount. The Installment Feature operates as follows:

(a)            First, you place your order with us, create your Afterpay Account (or elect to use an existing Afterpay Account) and identify your preferred method of payment, designating an eligible US-issued credit or debit card as your “Payment Method”. You may change your Payment Method at any time via your Afterpay Account but you may not be able to remove existing Payment Methods until all outstanding payments associated with your Afterpay Account have been made.

(b)            Next, we or Afterpay will send you a confirmation of your order, including a payment schedule setting forth a list of payment amounts that Afterpay is entitled to receive from you and the relevant due dates of each payment (your “Payment Schedule”). Your Payment Schedule will also be available through your Afterpay Account.

(c)            As described in your Payment Schedule, Afterpay will collect four (4) equal payments (each, an “Installment Payment”) by automatically charging your Payment Method(s) 25% of the purchase price every 2 weeks until paid in full. 

(d)            Where you make your first Installment Payment at the time you place an order with us, Afterpay will collect this first Installment Payment as our limited payment collection agent.  Your payment to Afterpay shall be considered the same as a payment made directly to us and your payment obligation to us for your first Installment Payment shall be extinguished upon receipt of such payment by Afterpay.

5.3           You are responsible for ensuring that you have sufficient funds via your Payment Method available to make Installment Payments on the dates specified in your Payment Schedule.

5.4           Late Payments

(a)            There are no fees associated with using the Installment Feature.  However, if a payment is not paid prior to the Due Date as specified in your Payment Schedule, and the Installment Payment fails on the Due Date (for example, if your Payment Method is a credit or debit card that has expired or you have entered incorrect information regarding your Payment Method in your Afterpay Account), you will be responsible for the following fees (“Late Fees”):

                                                     (i)               If an installment payment is due in accordance with the Payment Schedule on a particular date (the “Due Date”) and is not paid, an $8.00 Late Fee will be imposed on the day immediately following the Due Date;

                                                   (ii)               Another $8.00 Late Fee will be imposed seven days after the Due Date if the payment is still overdue.

                                                  (iii)               For the avoidance of doubt, as set forth in clauses (i) and (ii) above, a total of up to $16.00 in Late Fees may generally be imposed on each installment payment. Accordingly, a total of up to $48.00 in Late Fees may generally be imposed per order.

                                                  (iv)               However (A) the aggregate sum of Late Fees associated with a particular order will not exceed 25% of the order value at the time of purchase and (B) no partial Late Fees will be applied. Thus, lower value purchases may be subject to fewer Late Fees in the event of late payment.

For example, a $100 order may only have a maximum of three $8.00 Late Fees applied because a fourth Late Fee would equal $32 and exceed 25% of the $100 order value.

                                                   (v)               Please note that the cap on Late Fees is calculated based on your order value at the time of purchase. Subsequent refunds or discounts provided by a Seller will not affect the calculation of Late Fees that you may owe.

(b)            You authorize Afterpay to satisfy any monetary liability you owe us by (1) debiting your Payment Method at a later time or date, (2) debiting any other debit or credit card for which you have provided details, (3) offsetting the payment amount against any amounts we or Afterpay may owe to you, or (4) any other legal means.

(c)            Afterpay may, at its sole discretion, reasonably delay the application of, or waive wholly or partly, any Late Fee. If Late Fees are or may be incurred as a result of our error, please let Afterpay know, and it will waive or refund such fees, as applicable.

5.5           If you fail to make payments in accordance with your Payment Schedule, Afterpay reserves the right to limit, restrict, suspend or terminate your access to the Installment Feature in the future.

5.6           The Installment Feature is not a loan and there is no interest associated with the use of the feature.

5.7       We or Afterpay do not give any express warranty or guarantee as to the suitability, reliability or availability of the Installment Feature.

6.              Installment Payment Authorization

6.1           You agree to make Installment Payments in accordance with your Payment Schedule. You may make early payments through your Afterpay Account. You hereby expressly consent to, authorize and instruct Afterpay to (a) initiate recurring debit card payments from the debit card you specify in your Afterpay Account; or (b) to initiate recurring charges from your specified credit card, for the amounts, and on those scheduled dates, set out in your Payment Schedule. All Installment Payments will be automatically charged to the designated credit or debit card in accordance with your Payment Schedule. You acknowledge that you are giving Afterpay the ability to collect or reverse variable payment amounts from or to your Payment Method, in accordance with your Payment Schedule and the terms of this Agreement.

6.2           You agree to be bound by any rules that your debit or credit card issuer requires for pre-authorized debit or credit card transactions. You are responsible for all fees charged by your financial institution associated with the Installment Payment.

6.3           You must update all changes to your credit/debit card information by logging into your Afterpay Account via Afterpay’s website (or app). If you do not update your credit/debit card information and Afterpay is unable to charge your credit card or withdraw funds from your debit card for the amount due, you will be subject to Late Fees and you may be subject to fees or charges assessed by your financial institution.

6.4           AFTERPAY SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OF ANY KIND THAT YOU MAY INCUR AS A RESULT OF A PAYMENT MADE ON ITEMS INCORRECTLY BILLED OR FOR ANY DELAY IN THE ACTUAL DATE ON WHICH YOUR ACCOUNT IS DEBITED OR YOUR CREDIT CARD IS CHARGED, except to the extent that such fees or charges arise as a result of Afterpay’s error or system failure. If any fees or charges are imposed as a result of Afterpay’s error or system failure, please provide Afterpay with a copy of the relevant records, and if Afterpay determines such error was made by them then they will reimburse you for the relevant fees or charges.

7.              Order Confirmation and Cancellation

7.1           All orders that you place with us that utilize the Installment Feature are subject to approval by Afterpay, in its reasonable discretion.  Afterpay may choose not to provide the Installment Feature to you, suspend your Afterpay Account, close your Afterpay Account or to cancel an approved order before the goods or services are delivered or supplied, if:

(a)            we or Afterpay reasonably considers this necessary in order to protect the integrity of its systems or the Installment Feature, prevent fraud or otherwise protect against legal, regulatory or non-payment risk;

(b)            we or Afterpay reasonably suspects, or is aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement on the applicable Due Date); or

(c)            we or Afterpay otherwise reasonably consider the order to be suspicious.

7.2           We or Afterpay may choose not to provide the Installment Feature to you at any time for any reason, including but not limited to your history of transactions on our Sites, to prevent fraud or if you violate any term of this Agreement.

7.3           If we or Afterpay cancel your previously approved use of the Installment Feature:

(a)            Afterpay will apply a full refund of any amounts you have paid (excluding any chargebacks or other fees incurred by Afterpay in relation to your payment) to your Payment Method or, if that is not possible, to any other payment source as directed by you (and approved by Afterpay), and will cancel any future payments related to that order;

(b)            We will not be obliged to deliver the goods (or provide the services) the subject of the order, unless required to do so by law;

(c)            You will have no obligation to make any further payments to us, or continue any other ongoing relationship with us, with respect to that order; and

(d)            If you wish to proceed with the purchase from us, we may accept an alternative payment method in our discretion, or if required to do so by law.

8.              Refunds

8.1           If you decide to return goods to the Seller that have been purchased using the Installment Feature, and request a refund, or a return and refund are otherwise accepted or permitted by law, you will directly arrange the return with the Seller and ensure that the goods are returned according to the Seller’s return policy or other instructions or your rights at law.

8.2           The return must be completed within the period specified and in the manner required by the Seller’s returns policy or as otherwise permitted by us.

8.3           Until the Seller has confirmed the return of the goods and has issued a refund for those goods, you will remain liable for the full payment of the goods. During this time, Afterpay may continue to process any Installment Payments in accordance with the dates set out in your Payment Schedule.

8.4           Once the refund has been approved, the Seller will issue a refund to your debit/credit card and/or instruct Afterpay to adjust your Payment Schedule appropriately (including to reduce or cancel any future payments, if necessary). Please note, in the event of partial refunds, refund amounts are taken off the last payment/s first.

For example, if you make a $400 purchase and we approve a $250 refund, we will instruct Afterpay to cancel your third and fourth Installment Payments of $100 and amend your second Installment Payment to $50. Your new Payment Schedule would include two Installment Payments (instead of four) of $100 & $50. If you had already made two Installment Payments of $100 each, a refund of $50 would be applied to your Payment Method, and the remaining two Installment Payments would be cancelled.

9.              Your Eligibility

9.1           To be eligible to use the Installment Feature, you must:

(a)            be an individual who is at least 18 years old (19 years old in Alabama or if you are a ward of the state in Nebraska);

(b)            be a resident of the United States and reside within one of the 50 states or the District of Columbia;

(c)            be capable of entering into a legally binding contract;

(d)            have a valid and verifiable email address and mobile telephone number;

(e)            provide a valid delivery address in the United States; and

(f)             be authorized to use the Payment Method provided.

9.2           By entering into this Agreement, you represent and warrant that you are eligible to use the Installment Feature.

10.           Your Use of the Installment Feature

10.1         You promise to pay the full amount of the purchase price in four Installment Payments as set forth in Sections 5 and 8.

10.2         You agree that all information that you provide us is true, complete and accurate and you agree not to misrepresent your identity or your Afterpay Account information. You further agree to keep your Afterpay Account information up to date and accurate.

10.3         If your information, including your Payment Method information, changes, you agree to notify us immediately.

10.4         You are responsible for maintaining the security of your Afterpay Account details. If you believe your Afterpay Account may have been subject to an unauthorized transaction, account takeover or other fraudulent activity, please contact Afterpay immediately.

10.5         Prohibited uses of the Installment Feature

You agree not to use the Installment Feature for any unlawful or fraudulent activity and to immediately contact us if you believe that your Payment Method may be subject to an unauthorized transaction, account takeover or other type of fraudulent activity or security breach. By using the Installment Feature, you agree that you will not do any of the following:

(a)            Engage in any activities related to the Installment Feature that are contrary to any applicable law or regulation or the terms of any agreement you may have with us or Afterpay;

(b)            Provide false, inaccurate or misleading information to us or Afterpay;

(c)            Provide information belonging to any person other than yourself;

(d)            Use an Afterpay Account that belongs to another person for yourself or on behalf of another person

(e)            Use any device, software, routine, file or other tool or technology, including but not limited to any viruses, trojan horses, worms, time bombs or cancelbots, intended to damage or interfere with the Installment Feature or to surreptitiously intercept or expropriate any system, data or personal information from the Installment Feature;

(f)             Breach this Agreement or any other agreement or policy that you have agreed to with us, Afterpay or others;

(g)            Use the Installment Feature to accomplish a cash advance;

(h)            Take any action that imposes an unreasonable or disproportionately large load on our or Afterpay’s infrastructure, including but not limited to denial of service attacks, “spam” or any other such unsolicited overload technique; or

(i)             Commit unauthorized use of the Sites and our or Afterpay’s systems, including but not limited to unauthorized entry into our systems, misuse of passwords, or misuse of any information posted to the Site

(j)             Open or use multiple Afterpay accounts.

10.6     You may request to close your Afterpay Account by contacting Afterpay directly. You may only request to close your Afterpay Account if:

            (a)        all amounts owing by you (including any Late Fees) have been paid in full; and

(b)        no disputes or refunds are in progress.

10.7     Afterpay may close your Afterpay Account for any reason, upon giving you at least 90 days’ notice. This Agreement will continue to apply to any orders accepted prior to such closure until all amounts owing are received in full (including any Late Fees).

10.8     Except as otherwise stated, this Agreement will be terminated once your Afterpay Account is closed. However, you will remain liable for all outstanding obligations related to the Afterpay Account even after it has been closed.

 

11.           Assessment and Checks

11.1         You agree to provide any information or documentation reasonably requested by us or Afterpay to verify your identity in connection with your Afterpay Account or orders.

11.2         You authorize Afterpay to make, directly or through third parties, any inquiries it considers necessary to verify your identity and assess your capability to make payments according to the Payment Schedule in relation to all orders placed using the Installment Feature.

11.3         All information that Afterpay receives about you, including information collected in connection with the verification of your identity, will be collected, used and stored in accordance with our privacy policy located on the Afterpay website. You authorize us and Afterpay to disclose to third parties, to the extent required by any applicable law or regulations, any information in relation to you or your Afterpay account.

11.4         As part of Afterpay’s approval process and assessment as to whether or not you have the means to fulfill your obligation to make future payments according to the Payment Schedule, Afterpay reserves the right, directly or through third parties, to conduct an assessment of your Payment Method. This may involve placing a certain amount of funds (the “Trial Amount”) on hold in the account linked to your Payment Method (an “Assessment Transaction”) each time you make a purchase or change your Payment Method in your Afterpay Account.

(a)            The Trial Amount will not exceed your first Installment Payment owed for that purchase; and once Afterpay has completed its assessment, it will immediately instruct your bank to void the Assessment Transaction.

(b)            No funds are received by us or Afterpay during this process.

(c)            Afterpay cannot guarantee the time it takes for your bank to process both the Assessment Transaction and its voiding of the Assessment Transaction.

12.           Complaints and Disputes

12.1         If you have a complaint with us arising out of or related to the Payment Purchase Agreement or the Installment Feature, you should file a dispute through direct contact with us by following the Notice procedures set forth in Section 12.4 below.

12.2         If you wish submit a complaint to Afterpay, you should do so by contacting Afterpay using the details posted on the Afterpay website or available through your Afterpay Account.

12.3         We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes.

12.4         Arbitration

THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. THEY AFFECT EACH PARTY’S RIGHTS CONCERNING THE RESOLUTION OF ANY DISPUTE (DEFINED BELOW) BETWEEN THE PARTIES. TO REITERATE: ONCE THIS AGREEMENT HAS BEEN ASSIGNED TO AFTERPAY, ALL REFERENCES TO “WE,” “US,” OR “THE PARTIES” IN THIS SECTION 12.4 WILL MEAN OR INCLUDE REFERENCE TO AFTERPAY. 

(a)            To expedite resolution and the cost of any dispute, controversy or claim between you and us related to any dispute or controversy arising from or relating to this Agreement, your use of any part of the Installment Feature or the enforcement of any provision of this Agreement (a “Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Afterpay Account. Our address for such Notices is: Afterpay on Behalf of Seller, PO Box 328 San Francisco, CA 94104-0328, Attention: Legal, or by email to [email protected] Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.

(b)            IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, THE PARTIES AGREE THAT ANY PARTY TO THE DISPUTE MAY ELECT TO HAVE THE DISPUTE (EXCEPT THOSE DISPUTES EXPRESSLY EXCLUDED BELOW) FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. ANY ELECTION TO ARBITRATE BY ONE PARTY WILL BE FINAL AND BINDING ON THE OTHER. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and we may litigate in court to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

(c)            The parties agree that the following Disputes are not subject to the above provisions concerning information negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. In addition, either party may assert claims, if they qualify, in small claims court in the State of Delaware or any United States county where you live or work.

(d)            The parties agree that any arbitration will be limited to the Dispute between us and you individually. TO THE FULL EXTENT PERMITTED BY LAW, (1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS-ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.

(e)            Arbitration will take place in the State of Delaware. The parties agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the Delaware state and federal courts located in Delaware have exclusive jurisdiction and the parties agree to submit to the venue the personal jurisdiction of such courts.

(f)             You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by NOTIFYING US IN WRITING WITHIN 30 DAYS OF THE DATE YOU LAST PLACED AN ORDER. To opt out, you must send a written notification to us at [email protected], Attention: Legal, that includes (i) your Afterpay Account identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver sections.

13.           Applicable Law and Jurisdiction

Except as expressly provided otherwise, this Agreement is governed by, and will be construed under, the laws of the State of Delaware, without regard to choice of law principles.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  Judicial proceedings (other than small claims actions) that are excluded from the agreement to arbitrate in Section 12.4 must be brought in state or federal court in, or closest to, New Castle County, Delaware, unless we both agree to some other location.  You and we both consent to venue and personal jurisdiction there.  You and we both agree to waive their right to a jury trial.

14.           Limitation of Liability

14.1         To the extent not prohibited by law, under no circumstances shall we, our subsidiaries, partners, or affiliates, or Afterpay’s subsidiaries, partners, or affiliates, be liable to you for:  (a) personal injury or any indirect, incidental, consequential, special or exemplary damages, arising from or relating to this Agreement, the use of or inability to use an Afterpay Account, the Installment Feature, or our or your liabilities to third parties arising from any source; or (b) except as required under applicable law, any indirect, incidental, consequential, special or exemplary damages, arising from or relating to the conduct of you or anyone else in connection with the use of an Afterpay Account or the Installment Feature, including, but not limited to, damages arising from your failure to provide us or Afterpay with accurate information or a third party’s failure to correctly verify such information. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THIS SECTION MAY NOT APPLY TO YOU. You agree that if any lawsuit or court proceeding is permitted under this Agreement, the aggregate liability of us, our subsidiaries, partners, and affiliates, and Afterpay, Afterpay’s subsidiaries, partners, and affiliates to you for all claims arising out of or related to this Agreement or your use or inability to use a the Installment Feature will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount you any affected order(s) giving rise to such damages, or (b) the amount of five hundred U.S. dollars ($500.00).  These limitations will apply even if the above stated remedy fails of its essential purpose.

15.           Indemnification

15.1         You agree to release, indemnify and hold harmless us, our affiliates, and our and their respective officers, directors, employees and agents and Afterpay and its respective officers, directors, employees and agents from and against any claims, liabilities, damages, losses and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Installment Feature; (b) your breach of this Agreement; (c) your violation of any rights of a third party, including but not limited to any negligent or willful misconduct of your employees, contractors, or agents, or a breach of any contracts or other relationships between you and third parties; (d) your violation of any applicable law; or (e) your failure to provide and maintain true, accurate, current and complete information in your Afterpay Account, including but not limited to information regarding your Payment Method.

16.           Consent to Electronic Communications

16.1         By clicking to accept this Agreement, you are deemed to have executed this Agreement electronically. You consent to electronically receive and access via email or your Afterpay Account all records and notices related to the Installment Feature that we or Afterpay would otherwise be required to provide to you in paper form. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by sending an email to [email protected] with “Revoke Electronic Consent” in the subject line. Any withdrawal of your consent to receive records and notices electronically will be effective only after Afterpay has a reasonable period of time to process your request for withdrawal. If you withdraw your consent to receive communications electronically, we may restrict, suspend or terminate your access to the Installment Feature, or restrict or close your Afterpay Account, or charge you additional fees for paper copies.  If you withdraw your consent to receive communications electronically, this Agreement will continue to apply to any orders accepted prior to such closure until all amounts owing are received in full (including any Late Fees).

16.2         To ensure that we and Afterpay are able to provide communications to you electronically, you agree to notify Afterpay immediately of any change in your email address by updating your Afterpay Account or by contacting Afterpay via email.

16.3         To view and retain a copy of this Agreement and other communications from us or Afterpay, you will need a device (such as a computer or mobile phone) with a web browser and internet access and either a printer or local or cloud-based storage space. By accepting and agreeing to this Agreement electronically, you represent that (a) you have read and understand the above consent to receive records and notices electronically; (b) you satisfy the minimum hardware and software requirements specified in this Section 16.3; and (c) your consent will remain in effect until you withdraw your consent as specified above in Section 16.1.

16.4         For a paper copy of this Agreement or other communications provided by Afterpay to you, you may send an email to [email protected] with contact information and the address for delivery.

17.           Short Message Service (“SMS”) Communications

17.1         As part of the Installment Feature, Afterpay may send you SMS messages. You agree to receive SMS messages to each telephone number provided by you to Afterpay regarding the Installment Feature. You understand that such SMS may be placed using an automatic telephone dialing system or may include automated SMS messages. Your consent is required to allow Afterpay to contact you. You agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.

17.2         If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from Afterpay at any time by emailing us at [email protected] Upon receipt of your message, Afterpay will process the request and it will be effective only after Afterpay has a reasonable period of time to process your request. If you withdraw consent, you may be prevented from using the Installment Feature in the future.

18.           Miscellaneous

18.1         This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Installment Feature-related materials obtained from us and Afterpay and paying all amounts you owe (including any fees or expenses incurred or imposed by us or Afterpay) in full. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from us if, in our sole discretion, you fail to comply with any term or provision of this Agreement.

18.2         If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.

18.3         This Agreement constitutes and contain the entire agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements. You and we acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein

19.           Consumer Complaints

19.1         In accordance with California Civil Code §1789.3, if you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

20.           Questions

20.1         If you have any questions, complaints or claims with respect to the Site, please contact us via the details on our Site. If you have questions, complaints or claims related to the Installment Feature or Afterpay, please contact Afterpay at [email protected]