Purchase Payment Agreement - US
Please read this Purchase Payment Agreement (the"Agreement") carefully. By clicking to accept this Agreement and purchasing a good or service from us, the Seller, you agree to be bound by this Agreement. As used in this Agreement, the term "Sites" includes the websites of the Seller, the applications of the Seller, pages within the websites and/or applications, any equivalent mirrors, replacements, substitutes or backup websites and/or applications, and pages that are associated with these websites and/or applications. The headings contained in this document are for reference purposes only. You should print a copy of this Agreement for your records.
IMPORTANT INFORMATION REGARDING CARD PRE-AUTHORIZATIONS:
As part of our approval process and our assessment as to whether or not you have the capability to fulfill your obligation to make future payments to Passfeed according to the Payment Schedule, we reserve the right to conduct a pre-authorization of your Nominated Payment Source. This may involve placing funds in the account linked to your Nominated Payment Source on hold each time you make an online purchase or add a new Card and/or bank account to your Passfeed Account. For online purchases, we immediately instruct your bank and/or credit card to void this pre-authorization transaction.
PLEASE NOTE: In most circumstances, relevant banks and/or credit cards will void a pre-authorization transaction within a few hours of the pre-authorization transaction being conducted by Passfeed. However, in some observed instances, banks and/or credit cards have taken up to fourteen (14) days to finalize this process. Unfortunately, we do not have any control or influence over the timing of your bank and/or credit card’s ability to finalize this process and Passfeed makes no representations on this subject matter.
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 11.4 ("Arbitration") below. Please review Section 11.4 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, Passfeed, Inc. and/or Passfeed Financial, and/or PayLater ("Passfeed") and may be further assigned. Once assigned, all references to "we" "us" or the "parties" will mean or include reference to Passfeed or any party to which this Agreement is assigned. This means that the binding arbitration and class action waiver provisions described in Section 11.4 ("Arbitration") below will apply to all Disputes between you and Passfeed following assignment of this Agreement.
1. Welcome to our Website
We set out below the terms and conditions of your use of, and access to, our Products. Please read these terms and conditions carefully, as they impose rules, obligations and other responsibilities on you in respect of your use of the Products.
2. Parties to this Agreement
2.1 This Agreement is a contract between you ("you", "your") and the Seller ("we", "us", "our"). For the avoidance of doubt, the Seller means Passfeed, and/or Passfeed Financial, and/or PayLater, and/or the Retailer identified on your Payment Schedule, which is hereby incorporated by reference, and the owner of the website or store from which you are purchasing goods or services (the "Seller"). 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 5.3 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 Passfeed Products.
2.3 Changes to this Agreement (a) Passfeed may amend this Agreement at any time for any reason including, for example, if we change the functionality of our Products, introduce new products, or as required by law. We will post the amended Agreement on our App/Website. It is your responsibility to review this Agreement prior to each use of the Installment Feature. If you do not agree with the changes, you may close your Passfeed Account in accordance with clause 4.4. (b) We will not change any terms and conditions for an existing Order that has been accepted by us; the terms and conditions that will apply to an accepted Order (and any steps taken in relation to such Order, e.g., cancellation, refunds, etc.) are the terms and conditions that applied at the time you made the Order.
3. Our Relationship
3.1 About Us
(a) PayLater services allow you to buy goods or services offered by "US" online or within our application as permitted by Passfeed.
(b) 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), including service charges, plus any additional applicable fees.
(c) By placing an Order with a Passfeed and using our Products, you provide us with unconditional and irrevocable consent and direction to pay Passfeed on your behalf in exchange for your agreement and obligation to repay or pay to us, as principal debtor, in accordance with this Agreement the agreed amounts (which may include any applicable service charges, taxes, duties, or other related amounts charged by the Passfeed or it’s Sellers) and on the dates outlined in your Payment Schedule, plus any additional applicable fees.
(d) You acknowledge that we do not have any control over, and are not responsible eor liable for, the products or services purchased from Passfeed and/or it’s Sellers paid for with our Products.
(e) Passfeed does not:
(i) Enter into a partnership, joint venture, agency or employment relationship with you;
(ii) Always determine if you are liable for any taxes for products purchased from our third party Sellers; or
(iii) Always collect or pay any taxes on your behalf from our third party Sellers that may arise from your use of our Products.
3.2 No Warranty
(a) We do not give any express warranty or guarantee as to the suitability, reliability or availability of our Products, or of the content on our App/Website.
(b) Except as required by law, we do not guarantee continuous, uninterrupted or secure access to our Products, and we make no representations or warranties regarding the amount of time needed to complete processing of Orders or payment transactions.
3.3 Your Eligibility
To be eligible to use the PayLater Installment Feature, you must:
(a) be an individual who is at least 18 years old and of the legal age of majority in your state of residence (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 US mobile telephone number;
(e) provide a valid physical residential and delivery address in the 50 United States;
(f) be authorized to use the Payment Method provided; and
3.4 By entering into this Agreement, you represent and warrant that you are eligible to use the Installment Feature.
3.5 In addition to these eligibility requirements, please note that use of the Installment Feature is subject to approval at our sole discretion in each instance.
3.6 Transfers or Assignments
(a) You cannot transfer or assign any rights you may have under this Agreement without our prior written consent, which must not be unreasonably withheld.
(b) We may transfer or assign this Agreement, and any right under this Agreement, to a third party without notice to you or your consent unless the assignment will detrimentally affect your rights under the Agreement (in which case we will seek your consent prior to assignment, which consent must not be unreasonably withheld).
(c) You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. For the avoidance of doubt, you acknowledge that no assignment by us to another person of any amount you owe to us will require your consent or notice to you.
(d) We will assign this Agreement to Passfeed immediately upon your acceptance of this agreement and this Agreement shall constitute notice thereof. If, after such assignment, you desire to return goods you purchased from or through us, or have a complaint regarding your order, please contact us directly, as set forth in Sections 11 and 15, respectively. Note that any questions or complaints regarding the Installment Feature should be directed to our service provider, Passfeed.
4.Your Passfeed Account
4.1 Creating Your Passfeed Account
(a) You may create your Passfeed Account by visiting the Passfeed Website and/or using the Passfeed App.
(b) Once your Passfeed Account is created, you will be prompted to choose and enter a secure password. You may subsequently access your Passfeed Account, using your secure password, through our App/Website.
(c) You are responsible for maintaining the security of your Passfeed Account details. We will not take responsibility for unauthorized access and use of your Passfeed Account unless we have failed to take reasonable steps to prevent such unauthorized access or use.
(d) You acknowledge and agree that if a person places an Order with us by using your Passfeed Account (whether with or without your authorization), that person will be deemed to be you for the purposes of this Agreement and that will not (subject to clause
4.1(c) affect your obligations under this Agreement, regardless of whether:
(i) we are or at any time become aware of that or the use of your Passfeed Account not being authorized by you;
(ii) there is a dispute, breach, defect or other issue in relation to the Order, the products or services subject to the Order or the associated sales contract or any other agreement between that person and the Seller; or
(iii) any rights or claims that we may have against that person. except to the extent any use of your Passfeed Account by such a person is due to our negligence, wilful misconduct or breach of this Agreement.
4.2 Your Obligations to Us as a Holder of a Passfeed Account
By holding an Passfeed Account with us, you agree that you must:
(a) Pay any applicable Fees associated with your use of PayLater and your Passfeed Account;
(b) Not provide us with any information that is false, inaccurate or misleading (including, without limitation, in relation to your identity or personal details or by using an alias or false identity, even with the consent of the person whose identity you are using or seek to establish a fake, untraceable or unverifiable Passfeed Account);
(c) Ensure any information about you, including your contact details, is true, current and complete. If your information changes, you must update it through your Passfeed Account via our App;
(d) Provide to us in a timely manner all documentation relating to your identity, if requested by us;
(e) Not use your Passfeed Account or our Products for any unlawful, fraudulent or improper activity , including for any experimental, testing or research purposes or otherwise in a manner for which they have not been designed;
(f) Cooperate fully with us to investigate any suspected unlawful, fraudulent or improper activity on your Passfeed Account;
(g) Be aware of and pay any taxes that may apply to your use of our Products;
(h) Not permit others to use your Passfeed Account, or allow anyone else to have or use your account password details;
(i) Not use any technology (device, software or hardware) to damage, intercept or interfere with our Products;
(j) Immediately contact us if you believe that your Passfeed Account may be subject to an unauthorized transaction, account takeover or other type of fraudulent activity or security breach;
(k) Not create liability for us or cause us to lose (in whole or in part) the services of our suppliers;
(l) authorize us to disclose Card-related profile and purchase behavior information to third parties (including, without limitation, Visa, MasterCard, Discover, and American Express) for the purpose of eliminating fraud and illicit behavior; and
(m) Not open or use more than one Passfeed Account.
4.3 Closing Your Passfeed Account
(a) You may request to close your Passfeed Account by contacting us directly at. You may only request to close your Passfeed Account if:
(i) All amounts owing to us by you (including any service charges and applicable fees) have been paid in full to us; and
(ii) No disputes or refunds are in progress.
(b) You may not close your Passfeed Account to evade investigations of any nature.
(c) We may, however, close your Passfeed Account for any reason, within our reasonable discretion. This Agreement will continue to apply to any Orders accepted prior to such closure until all amounts owing are received in full (including any service charges and applicable fees).
(d) Except as otherwise stated, this Agreement will be terminated once your Passfeed Account is closed. However, you will remain liable for all outstanding obligations related to the Passfeed Account even after it has been closed.
(e) We may immediately limit your access to our Products or suspend or close your Passfeed Account where we have reasonable cause to do so including, without limitation, where:
(i) we reasonably consider it necessary to do so in order to:
(A) protect the integrity of our systems or the Products;
(B) prevent fraud;
(C) limit the risk of money laundering or terrorism financing; or
(D) otherwise protect us against legal, regulatory or non-payment risk;
(ii) you do not pass our verifications or credit checks, including our pre-authorization check described in Section 9;
(iii) we reasonably suspect, or are aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement by the payment due date or by providing us with false, inaccurate or misleading information or using your Passfeed Account or our Products in breach of this Agreement); or
(iv) we otherwise reasonably consider the activity associated with the Passfeed Account to be suspicious.
(f) We will use our best efforts to provide written notice to you before closing your Passfeed Account, in the circumstances described in clause 4.3(e) above, except where doing so may compromise any investigation related to your breach of this Agreement or unlawful or improper conduct. Where we close your Passfeed Account in accordance with clause 4.3(e), this Agreement will be terminated, and all amounts owed by you to us will immediately become payable to Passfeed.
(g) Despite clause 8(f), where your Passfeed Account has been closed for any reason, our respective obligations in relation to product returns in clause 5 will only continue until:
(i) all amounts you owe to us have been paid to us; or
(ii) the date which is 30 days after your last Order whichever is sooner.
5. Orders, Payments and Billing
5.1 Order Confirmation and Payment Schedule
(a) All Orders which you place with Passfeed are subject to approval by Passfeed, in our reasonable discretion. We may choose not to approve an Order or provide a Product to you, or may cancel an approved Order before the goods or services are delivered or supplied, if:
(i) we reasonably consider this necessary in order to:
(A) protect the integrity of our systems or the Products;
(B) prevent fraud;
(C) limit the risk of money laundering or terrorism financing; or
(D) otherwise protect us against legal, regulatory or non-payment risk;
(ii) you do not pass our verifications or checks, including those described in Section 9;
(iii) we reasonably suspect, or are aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement on the payment due date);
(iv) an Order is made with a merchant in a different jurisdiction that is not permitted by Passfeed; or
(v) we otherwise reasonably consider the Order to be suspicious.
(b) If we cancel an approved Order:(i) we will apply a full refund of any amounts you have paid to us to your PayLater Balance or Nominated Payment Source or (if that is not possible) to any other Card that you have provided us details of, and will cancel any future payments related to that Order. In the event the approved Order is cancelled because a chargeback has been incurred by Passfeed in relation to a payment for the approved Order, that payment will not be refunded by Passfeed. Any return of funds in that event will be as between you and your issuing bank and/or credit card. The Retailer will not be obliged to deliver the goods (or provide the services) the subject of the Order, unless required to do so by law;
(ii) you will have no obligation to make any further payments to us, or any other ongoing relationship with us, with respect to that Order; and
(iii) if you wish to proceed with the purchase from the Retailer, the Retailer may accept an alternative payment method in its discretion, or if required to do so by law.
(c) Once we approve your Order, you will receive an email from us with confirmation of receipt of your Order.
(d) You agree to ensure that payment(s) are made in accordance with the Payment Schedule. You may make early payments through your Passfeed Account, otherwise Passfeed will automatically process payments in accordance with the due dates stated on the Payment Schedule. You authorize Passfeed to process such payments using the Payment Method details provided by you. If an Automatic Payment fails on any of the dates specified in your Payment Schedule, Passfeed reserves the right to re-attempt to process the payment at a later time or date.
5.2 Automatic Payments / Installment Payment Authorization
(a) You hereby expressly consent to, authorize and instruct us to initiate recurring payments from your Nominated Payment Sources, or your bank account, debit card, and/or credit card, that you specify for the amounts and on the scheduled dates according to your Payment Schedule. All PayLater Installment Payments will be automatically charged to the designated Nominated Payment Sources in accordance with your Payment Schedule. You acknowledge that you are giving us (and subsequent to the assignment of this Agreement, Passfeed) 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.
(b) If we or Passfeed are unable to collect any installment payments because your specified Nominated Payment Sources method failed for any reason, in addition to the authorization above, you expressly consent to, authorize and instruct us to charge your specified bank account, debit card, and/or credit card to collect the total of any such missed Installment Payment (plus, for the avoidance of doubt, assessed Late Fees, in accordance with Section 5.5). We may charge such amount at any time.
(c) You agree to be bound by any rules that your bank and/or credit card requires for pre-authorized temporary deposits/withdrawals. You are responsible for all fees charged by your financial institution associated with the Installment Payment.
(d) You must update your Account with all changes to your bank account and/or credit card information by logging into your Account. If you do not update your Account with changes to your bank account, debit card, and/or credit card information and we are unable to withdraw funds from your bank account, debit card, and/or credit 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.
(e) NEITHER WE NOR PASSFEED SHALL 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 FUNDS ARE WITHDRAWN FROM YOUR BANK ACCOUNT AND/OR CHARGED TO YOUR CREDIT CARD, except to the extent that such fees or charges arise as a result of error or system failure. If any fees or charges are imposed as a result of error or system failure, please provide our service provider Passfeed with a copy of the relevant records, and if Passfeed determines such error was made then you will be reimbursed for the relevant fees or charges.
(f) You are responsible for ensuring that you have sufficient funds in your Nominated Payment Source available to make Automatic Payments on the dates specified in your Payment Schedule. You are liable for any fees or charges imposed by your Nominated Payment Source, except to the extent that such fees or charges arise as a result of our error or system failure. If any fees or charges are imposed as a result of our error or system failure, please provide us with a copy of the relevant records, and we will reimburse you for the relevant fees or charges.
(g) If an Automatic Payment fails (for example, if your Nominated Payment Source is a credit or debit card which has expired), Late Fees may apply unless you otherwise make the scheduled payment on or before the relevant due date. You authorize us to satisfy any monetary liability you owe us by:(i) Debiting your Nominated Payment Source at a later time or date; (ii) Debiting any other Card which you have provided details of;
(iii) Offsetting the payment amount against any amounts we may owe to you; or
(iv) Any other legal means.
Please see Section 5.5 below for more information regarding service charges and applicable fees.
5.3 Description of the PayLater Installment Feature
(b) The Installment Feature enables you to pay for goods or services sold through the App/Website described within the Passfeed App/Website in installments. Please note that we may set certain minimum and maximum purchase amounts to use the PayLater Installment Feature. The Installment Feature operates as follows:
(c) You will be able review the total amount of your aggregate monthly purchases, a list of the payment amounts that we are entitled to receive from you and the relevant due dates of each payment ("Payment Schedule"), and identify your preferred method of payment, designating an eligible US-issued bank account, credit card, or debit card as your "Payment Method." ATM and prepaid debit cards are not eligible payment methods.
(d) You will place your order with us and we will send you a confirmation of your order, including a statement containing itemization of the amount financed and your Payment Schedule ("Payment Schedule Confirmation"). Your Payment Schedule will also be available through your Account and is hereby incorporated into this Agreement by reference along with your Payment Schedule Confirmation.
(e) As described in your Payment Schedule, we will collect four (4) payments (each, a "PayLater Installment Payment") by charging your selected Payment Method according to your Payment Schedule.
(f) Refer to this Agreement and to your Payment Schedule Confirmation for relevant information about nonpayment, default, the right to accelerate the maturity of this Agreement, and prepayment.
(g) Passfeed may, in its sole discretion and at the time of assignment, apply certain promotional payment credits on your behalf to the total amount of payments owed (a "Passfeed Promo"). Any such promotional credit will be applied equally across the four Installment Payments to reduce each equally, and will be reflected in the amount of each payment displayed on your Payment Schedule. In order to determine the amount of each payment on your Payment Schedule prior to the application of the Passfeed Promo, you can divide the amount of the Passfeed Promo in four and add the resulting amount to each PayLater Installment Payment.
5.4 You are responsible for ensuring that you have sufficient funds via your Payment Method available to make PayLater Installment Payments on the dates specified in your Payment Schedule.
5.5 Service Charges and Fees
(a) There is a service charge of 25% of the aggregate monthly order value applied to each Installment Payment. In addition, if a payment is not paid prior to the Due Date as specified in your Payment Schedule, and the Installment Payment is not successfully processed on the Due Date, you may be responsible for additional charges or fees.
(i) If an installment payment is due in accordance with the Payment Schedule on a particular date (the “Due Date”) and remains unpaid following that date, an additional charge or fee may be imposed;
(ii) Please note that the service charge is calculated based on the aggregate monthly order value total at the time of purchase. Subsequent refunds or discounts provided by a Seller will not affect the calculation of additional charges or fees imposed that you may owe.
(b) You authorize us, to the extent permitted by law, to satisfy any monetary liability you owe us by (1) debiting your Payment Method at a later time or date in accordance with the Payment Authorization, (2) debiting any other debit or credit card for which you have provided details, (3) offsetting the payment amount against any amounts we may owe to you, or (4) any other legal means.
(c) We may, in our sole discretion, reasonably delay the application of, or waive wholly or partly, any service charge or additional charges or fees. If charges or fees are or may be incurred as a result of our error, we will waive or refund such charges or fees, as applicable.
5.6 If you fail to make payments in accordance with your Payment Schedule, we reserve the right to limit, restrict, suspend or terminate your access to the Installment Feature in the future.
5.7 We do not give any express warranty or guarantee as to the suitability, reliability or availability of the Installment Feature.
5.8 If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent. If you are delinquent or have filed or have instituted against you bankruptcy or insolvency proceedings, we may in our discretion, to the extent and at the time permitted by applicable law, deem you in default and accelerate the maturity of this Agreement and all payments due hereunder.
6.Order Confirmation and Cancellation
6.1 All orders that you place with us that utilize the PayLater Installment Feature are subject to approval. We may, in our sole discretion, not provide the PayLater Installment Feature to you, or cancel an approved order before the goods or services are delivered or supplied for any reason including but not limited to your history of transactions with our service provider Passfeed or to prevent against fraud, legal, regulatory, or nonpayment risk. You authorize us to make, directly or through third parties, any inquiries we consider necessary to verify your identity and assess your capability to make payments according to the Payment Schedule in relation to all Passfeed Orders. This may include ordering a credit report, performing other repayment capability checks and verifying information you provide against third party databases. You authorize Passfeed (or any third parties providing services on behalf of Passfeed) to disclose to third parties, to the extent required by any applicable laws or regulations, any information in relation to you or your Passfeed Account. In addition, you acknowledge that Passfeed reserves the right to report any negative activity on your Passfeed Account (including late payments, missed payments, defaults or chargebacks) to credit reporting agencies.
6.2 If Your Previously Approved Use of the PayLater Installment Feature is Canceled:
(a) You will receive a full refund of any amounts you have paid (excluding any chargebacks or other fees incurred 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 us), and will cancel any future payments related to that order;
(b) We (or, if this agreement has been assigned, the Seller from which you purchased goods or services) 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 at our discretion, or if required to do so by law.
6.3 Service Charges and Fees
Service charges and fees, if any, payable by you for the use of our Products or your Passfeed Account will be set out in this Agreement.
7.Your Use of the PayLater Installment Feature
7.1 You promise to pay the full amount of the aggregate monthly purchase price in four Installment Payments as set forth in Sections 5 and 8 to the holder of this Agreement.
7.2 You agree that all information that you provide us is true, complete and accurate and you agree not to misrepresent your identity.
7.3 If your information, including your Payment Method information, changes, you agree to notify our service provider Passfeed immediately.
7.4 Prohibited Uses of the PayLater Installment Feature You agree not to use the PayLater Installment Feature for any unlawful or fraudulent activity and to immediately contact our service provider Passfeed 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 PayLater Installment Feature, you agree that you will not do any of the following:
(a) Engage in any activities related to the PayLater Installment Feature that are contrary to any applicable law or regulation or the terms of this Agreement;
(b) Use the PayLater Installment Feature to accomplish a cash advance.
7.5 Cross Border Transactions
Where you use our Products to make a Cross Border Transaction, we will convert what the Retailer charges for the goods into your local currency using a retail exchange rate selected by Passfeed at our discretion to determine the Order Value and the amounts payable by you in accordance with your Payment Schedule. The exchange rate used will change regularly to reflect the currency fluctuations in the foreign exchange market. No set up fees or foreign exchange commission will be applied to the exchange rate applied to perform the conversion.
7.6 No Set-Off
Notwithstanding any other provisions of this Agreement, you must make all payments in accordance with the Payment Schedule and pay all other amounts in full to us under this Agreement without any set-off, withholding or reduction for any reason whatsoever, including any existing or future act, omission, or default by us.
Refunds and Other Adjustments Subsequent to Purchase
8.1 If you decide to return goods that have been purchased using our products, the PayLater 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 us and ensure that the goods are returned according to Passfeed’s Return & Refund Policy or other instructions or your rights at law.
8.2 It is your responsibility to notify us if you intend to return any goods. The return must be completed within the period specified and in the manner required by Passfeed’s Return & Refund Policy or as otherwise permitted by the Passfeed.
8.3 Until Passfeed 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, we may continue to process any PayLater Installment Payments in accordance with the dates set out in your Payment Schedule.
8.4 Once the refund (or other price adjustment subsequent to purchase) has been approved, Passfeed will issue a refund to your PayLater balance, bank account, debit card, or credit card and/or instruct Passfeed to adjust your Payment Schedule appropriately (including to reduce or cancel any future payments, if necessary). If the refund is processed to your expired or canceled card, you will need to obtain the returned funds by contacting your financial institution. Please note, you are only eligible to receive a refund for amounts that you have actually paid; you will not receive a refund for any Passfeed Promo applied to your purchase. Please note, in the event of partial refunds, refund amounts are taken off the last payments first. For example, if you make a $400 purchase using Passfeed and we approve a $250 refund, we will cancel your 3rd and 4th installments of $100, and amend your 2nd installment to $50. Your new payment schedule will become 2 payments (instead of 4) of $100 & $50. If you had already paid 2 installments of $100 each, a refund of $50 would be applied to your card and the remaining 2 installments would be canceled.
9. Assessment and Checks
9.1 You agree to provide any information or documentation reasonably requested to verify your identity in connection with your order.
9.2 You authorize us and our service provider Passfeed to make, directly or through third parties, any inquiries 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 PayLater Installment Feature.
9.3 As part of the 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, we reserve the right, directly or through third parties, to conduct an assessment of your Payment Method.
9.4 Repayment Capability and Identity Checks
(a) We reserve the right to verify your identity. Verifying your identity does not mean we will approve your order (see Section 6 for other variables that are considered).
(b) You agree to provide any information or documentation reasonably requested by Passfeed or Passfeed Financial to verify your identity in connection with your Passfeed Account or Orders.
(c) You authorize us to make, directly or through third parties, any inquiries we consider necessary to verify your identity and assess your capability to make payments according to the Payment Schedule in relation to all Passfeed Orders. This may include ordering a credit report, performing other repayment capability checks and verifying information you provide against third party databases.
(e) You authorize Passfeed (or any third parties providing services on behalf of Passfeed) to disclose to third parties, to the extent required by any applicable laws or regulations, any information in relation to you or your Passfeed Account. In addition, you acknowledge that Passfeed reserves the right to report any negative activity on your Passfeed Account (including late payments, missed payments, defaults or chargebacks) to credit reporting agencies.
(f) As part of our approval process and our assessment as to whether or not you have the means to fulfil your obligation to make payments to Passfeed according to the Payment Schedule, we reserve the right to conduct a pre-authorization of your Nominated Payment Source. This may involve placing funds in the account linked to your Nominated Payment Source on hold each time you make an online purchase or add a new Card to your Passfeed Account.
10. Our Intellectual Property
(a) Our App and Website and all content within are the exclusive property of Passfeed. The information on our App/Website is for information purposes only and is subject to change without notice.
(b) You must not copy, imitate, modify, alter, amend or use without our prior written consent any URLs representing our Website, or any of our content, logos, graphics, icons or other content published on our Website or in our printed media.
11. Complaints and Disputes
11.1 If you have a complaint with us arising out of or related to the Payment Purchase Agreement or the PayLater Installment Feature other than with respect to the delivery or quality of the goods purchased, you should file a dispute by following the Notice procedures set forth in Section 11.4 below. If you have a complaint arising out of the delivery or quality of the goods you have purchased from a Seller, you should contact the Seller using the details posted on Seller’s website and/or by returning to the Seller’s store.
If you have a complaint arising out of the delivery or quality of the goods you have purchased from us, you should contact us using the details posted on our app/website.
11.2 If you wish to submit a complaint to Passfeed, you should do so by contacting Passfeed using the details posted on the Passfeed App/Website.
11.3 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.
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 PASSFEED, ALL REFERENCES TO "WE," "US," OR "THE PARTIES" IN THIS SECTION 12.5 WILL MEAN OR INCLUDE REFERENCE TO PASSFEED.
(a) To expedite resolution and to minimize 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 PayLater 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 Account. Our address for such Notices is: Passfeed, 750 Lexington Ave, 9th Floor, New York, NY 10022, Attention: Legal, or by email to. 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, AFTER 30 DAYS FROM THE DATE OF THE FIRST NOTICE, 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. 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) 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 our service provider Passfeed at email@example.com, Attention: Legal, that includes (i) your 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.
12. 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 11.4 must be brought on an individual basis and not in a class or representative action. You and we both agree to waive their right to a jury trial.
13. Notices and Communications
13.1 How we will communicate with you
(a) This Agreement and any other agreements, notices, or other communications regarding your Passfeed Account and/or your use of our Products may be provided to you electronically.
(b) You agree to receive all communications from us in electronic form. Communications will be posted on our app and/or websites (where permitted under this Agreement) and/or sent to your email address.
(c) Alternatively, we may choose to give notice to you by:
(i) serving it personally at, or sending it by mail to, your nominated contact address listed on your Passfeed Account; or
(ii) sending it to you via other electronic methods of communication using contact details listed on your Passfeed Account (including text messages).
(d) Where a notice is served personally, service of the notice is taken to be effected when delivered. Where a notice is sent by post, service of the notice is taken to be effected on the fourth day after the date of postage. Where a notice is sent by electronic mail, or through other electronic means, service of the notice is taken to be effected on the day on which it is sent.
(e) You consent to us using the contact details you have provided to us to:
(i) contact you on an ongoing basis for marketing purposes whether by email, SMS, phone or otherwise (unless you have notified us that you do not wish to receive such communication); and/or;
(ii) contact you in relation to your Passfeed Account and/or our Products.
(f) You acknowledge that we (or any third party providing services on behalf of us) may monitor or record telephone conversations or electronic communication for quality control and training purposes or for Passfeed’s own protection. Passfeed does not provide any guarantee that any such monitoring or recording will be retained or retrievable.
13.2 How You Can Communicate With Us
Except as explicitly stated otherwise, any notices to us should be given by mail to: Passfeed, 750 Lexington Ave, 9th Floor, New York, NY 10022
(b) Other communications
If you wish to contact us for any other reason, you can do so using the information provided below: Email:
14.1 System Outages
(a) Access to our Products or our app/websites may occasionally be unavailable or limited due to hardware or software failure or defects, overloading of system capacity, damage from natural events or disasters or disruptive human activity, interruption of power systems, labor shortages or stoppages, legal or regulatory restrictions as well as other causes outside of our control.
(b) To the extent permitted by law, Passfeed will not be liable for any loss or damage which you may incur as a result of our Products or our app/websites being unavailable.
14.2 Governing Law and Jurisdiction
(a) This Agreement is governed by the law in force in the 50 United States. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the 50 United States.
15. Limitation of Liability
15.1 To the extent not prohibited by law, under no circumstances shall we, our subsidiaries, partners, or affiliates, or Passfeed or its 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 Account, the PayLater 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 Account or the Installment Feature, including, but not limited to, damages arising from your failure to provide us or Passfeed 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 Passfeed, Passfeed’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 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 ($1,000.00). These limitations will apply even if the above stated remedy fails of its essential purpose.
(a) You are responsible to Passfeed and any related companies of Passfeed to the extent they are involved in the provision of the Products for any loss, costs (including reasonable legal fees), expense or damage they suffered or incurred: (i) in connection with any claim or demand made by any third party due to or arising out of your breach of this Agreement, or your breach of any law or of the rights of a third party relating to your use of our Products or App/Website; and (ii) as a direct or indirect consequence of unauthorized users accessing your account as a result of your negligence. To the extent that clause 15.2(a) gives a non-party rights, Passfeed contracts as trustee of the rights given under that clause.
(b) Your liability under clause 15.2(a) will be reduced proportionately to the extent that Passfeed, its contractors or agents: (i) caused or contributed to the relevant claim, demand, loss or damage; or (ii) failed to take reasonable steps to mitigate the relevant claim, demand, loss or damage.
(c) You agree to release, indemnify and hold harmless us, our affiliates, and our and their respective officers, directors, employees and agents and Passfeed and its respective officers, directors, employees and agents from and against any liability arising out of or related to your use of the Installment Feature or violation of the terms of this Agreement.
15.3 Breach Relating to Misuse of the Products
(a) You acknowledge that it is imperative that Passfeed be able to rely on:
(i) the information you provide to us;
(ii) the identity that you use; and
(iii) that your use of your Passfeed Account and our Products be for the intended purpose.
(b) You acknowledge that a breach by you of any obligation in this Agreement in relation to the matters in clause 15.3(a) (including, without limitation, a breach of clauses 3.3 or 4.2(b) and 4.2(e) of this Agreement) would cause significant detriment to Passfeed and its related bodies corporate. You agree that monetary damages will not be sufficient to remedy that detriment, or may otherwise be incapable of being ascertained, and irrevocably consent to Passfeed or any of its related bodies corporate seeking and obtaining injunctive relief to obtain relevant documents from you and to prevent such breach, or orders of specific performance to compel compliance, in addition to any other remedies available at law or in equity.
(c) If Passfeed reasonably considers that you have breached an obligation under this Agreement in relation to your identity, the information you provide to us and/or your use of your Passfeed Account and our Products, you agree, on request from Passfeed, to provide Passfeed with copies of all documents, notes or communications in relation to such alleged breach.
(d) This clause 15.3 survives termination of this Agreement.
Passfeed, we, us or our means Passfeed Inc and/or Passfeed Financial, and can include a Passfeed Affiliate where applicable. Passfeed Account means an account that Passfeed creates to uniquely identify you and to enable you to use our Products. Passfeed Affiliate means a related body corporate or related entity of Passfeed, including one in another jurisdiction. Agreement means this agreement and its schedule, together with any policies and documents incorporated by reference. Card means any United States card issued by Visa, MasterCard, Discover, and/or American Express, excluding Gift Cards and other pre-paid cards.
Consequential Loss means any loss, damage or costs incurred that is:
(i) indirect or consequential; and
(ii) any loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity other than in respect of any such losses incurred by Passfeed and/or Passfeed Financial directly in respect of this Agreement.
Charges and fees means any charge or fee imposed by us, as described in this Agreement, including service charges.
Gift Card means a stored value or prepaid card which, when activated:
(a) can be used to purchase services or merchandise from suppliers;
(b) may not be redeemable for cash;
(c) may be capable of being used on multiple occasions;
(d) is marketed solely as a gift card;
(e) is not a component of another financial product; and
(f) prominently displays or permits the prominent display on the card or mechanism either:(i) the expiration date; or (ii) the number of months following purchase that such card or mechanism expires (along with room to write the purchase date on such card or mechanism).
For the avoidance of doubt, Gift Card includes both open loop and closed loop pre-paid cards.
Service Charge means the charge set out in Schedule 1.
Nominated Payment Source has the meaning given in clause 5.2(a).
Order means a request submitted by you to us, to use a Passfeed Product, such as the PayLater Installment Feature to purchase/pay for goods or services offered by and/or through us.
Order Value means the total cost of your Order displayed to you by Passfeed in the Passfeed payment window (before any refunds may be applied).
Payment Method means any payment method accepted by Passfeed from time to time.
Payment Schedule means, in relation to an Order, a list of payment amounts that Passfeed is entitled to receive from you, and the relevant due dates of each payment.
Products mean the payment products and associated services offered by Passfeed from time to time.
Website means www.passfeed.com and any other website operated by Passfeed, including the Passfeed App.
You (or Your) means the person identified when a Passfeed Account is created. If:
(a) such person does not exist, or
(b) the name or details are used by someone who is not in fact that person, or
(c) is otherwise provided dishonestly or fraudulently, then You (or Your) means the person who clicks to accept these terms.
16. CONSENT TO ELECTRONIC COMMUNICATION
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 Account all records and notices related to the Installment Feature that we 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 towith “Revoke Electronic Consent” in the subject line. Any withdrawal of your consent to receive records and notices electronically will be effective only after 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 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 service charges and additional charges and fees).
16.2 To ensure that we are able to provide communications to you electronically, you agree to notify our service provider Passfeed immediately of any change in your email address by updating your Account or via email.
16.3 To view and retain a copy of this Agreement and other communications under this Agreement, 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 under this Agreement, you may send an email towith contact information and the address for delivery.
17. Short Message Service ("SMS") Communications & Email Marketing
17.1 As part of the Installment Feature, we may send you SMS messages. You agree to receive SMS messages to each telephone number provided by you to us or Passfeed 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 us 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 by emailing. Any request will be effective only after a reasonable period of time to process the request. If you withdraw consent, you may be prevented from using the Installment Feature in the future.
17.3. You agree that we may send you marketing communications to the email address and/or phone number you have provided including but not limited to targeted offers, introduction of new features, or other special announcements.
18.1 This Agreement is effective until all amounts due under the Agreement are paid in full or otherwise canceled or refunded.
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, including all documents or other material incorporated by reference, constitutes and contains 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 ComplaintsIn 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.
NOTE: ANY HOLDER OF THIS CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES THAT ARE THE SUBJECT HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.