TradeEpay Website Terms and Conditions

1. Application of terms

1.1 Terms

These Terms and Conditions apply to your use of the TradeEpay Website, including the TradeEpay System encompassed in the website and, upon acceptance by you, constitute a binding legal agreement between TradeEpay Australia Pty Ltd and you.

The terms in clause 11 involve obligations in favour of Assembly Payments, a third party engaged by us to provide payment processing services. We may enforce those obligations against you for the benefit of Assembly Payments.

By using the TradeEpay Website and System, and in consideration for us providing the services described herein, you agree to be bound by these Terms and Conditions from the date that you first use the TradeEpay Website or attempt to obtain services from us.

1.2 Changes to terms

We may change these Terms and Conditions from time to time, to reflect changes in the products and services that we offer and/or in response to regulatory changes, by publishing new terms on the TradeEpay Website. By continuing to use the TradeEpay Website and system after the new terms have been published, you accept any changes to these Terms and Conditions.

2. Services to be provided by TradeEpay

2.1 Payment Processing Services

We will provide services through the TradeEpay System by to facilitate the making and receiving of payments for goods and services by electronic means, including by debit or credit card or bank transfer.

We may provide services under this Agreement through the TradeEpay website or through an application programming interface (API) integration to your website or information system.

We grant you, for the term of this Agreement, a non-exclusive, non-transferable, revocable license to access and use TradeEpay System, including any API, and to utilise any software, systems, and/or communication links furnished by us in conjunction with the TradeEpay System, in accordance with the Terms and Conditions of this Agreement and any other implementation and use requirements that we provide to you from time-to-time in writing.

You may not rent, lease, assign, sublicense or otherwise transfer your licence to use the TradeEpay System to any other person. You may not alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from or included in the TradeEpay System. All rights, title, and interest to the TradeEpay System, including any TradeEpay Intellectual Property, are owned exclusively by TradeEpay.

2.2 Escrow agent services

In connection with the payment processing services, we will maintain the TradeEpay Trust Account, into which Clients will pay the price for each Job Stage pending completion of that Job Stage.

We will hold funds in the TradeEpay Trust Account with no duties to any Client or Contractor other than to deal with the funds in accordance with these Terms and Conditions.

The TradeEpay Trust Account will be one account into which payments from all Clients will be made. You agree that we are not required to maintain separate accounts in respect of each Client or Contractor.

2.3 Maintenance

(a) Scheduled Service Maintenance

We plan several scheduled maintenance windows each year, usually early Sunday mornings in order to maintain and increase the availability and performance of Payment Processing Services. We will make commercially reasonable efforts to provide you with at least forty-eight (48) hours prior notice via email to the email address provided by you to us.

(b) Unscheduled Service Outage Notification:

In the event of unscheduled TradeEpay System outages, we will notify you via email to the email address provided by you to us. We will make commercially reasonable efforts to provide this notification within twelve (12) hours of the commencement of the outage. Such notice shall include an estimated time of restoration of services, if we can reasonably make such determination. Once the TradeEpay System outage is resolved and services are restored, we will provide a follow-up notice via email to you as soon as reasonably possible explaining the reason for the outage, the duration of the outage, and the corrective action taken by us, if appropriate.

3. Use of the Services

3.1 Your use

You must comply with any policies published by us from time to time in your use of the Services, including policies relating to mediation and arbitration and fair use of the Services.

You must only upload material onto the TradeEpay Website that is truthful and accurate to the best of your knowledge.

3.2 Acknowledgment

We will take reasonable steps to ensure that information on the TradeEpay Website is complete and accurate, and that the TradeEpay Website will be continuously available. However, we make no representation and give no warranty that the TradeEpay Website will be error free, or available for any particular period or at any particular time.

We may change the functionality of the TradeEpay Website from time to time without notice to you, in order to reflect changes to our product and service offering, to improve the delivery of existing services or to improve the security of the TradeEpay website. We will give advance notice of any changes wherever practicable to do so.

3.3 No offensive Material

You must not upload to the TradeEpay Website, or use the TradeEpay Website to send any offensive, infringing or inappropriate Material to another person. You must not use the TradeEpay Website to harass another person, or to engage in any illegal conduct.

3.4 No illegal jobs

You must ensure that all Job Stages you process using the TradeEpay System are legal and do not breach any Applicable Law.

3.5 Proper use of website

You must not use the website in any manner or for any purpose that is unlawful, or in any manner that violates any right of TradeEpay, or that is prohibited by these terms. In particular it is a condition of your use of and/or access to the website that you do not do any of the following:

(a) disrupt or interfere with the website or any servers, software, hardware or equipment connected to or via the website;

(b) restrict or inhibit any other user from using or enjoying the website;

(c) distribute or transmit any material of any kind which contains a virus or other harmful component; or

(d) violate any Applicable Law relating to your use of the website.

3.6 Good Faith and fair use

You agree to:

(a) act in good faith and be just and faithful to, and co-operate with us and Assembly Payments in relation to all matters concerning the provision of the services described in clause 2 and this Agreement;

(b) do or cause to be done all acts necessary or desirable for the implementation of this Agreement; and

(c) not unreasonably withhold or delay any action, approval, direction, determination or decision required under this Agreement.

For the avoidance of doubt, acting in good faith means:

(d) acting honestly;

(e) co-operating in the performance of this Agreement; and

(f) acting reasonably in the exercise of powers under, and the performance of obligations in relation to, this Agreement.

3.7 Obligations to third parties

You acknowledge and agree that:

(a) we have entered into the Assembly Agreements with Assembly Payments, under which Assembly Payments will supply services to us for the benefit of us and our customers, including you;

(b) we are relying upon you to properly perform your obligations under this Agreement so that Assembly Payments may comply with, and fully meet its obligations under, the Assembly Agreements and any law or Industry Code;

(c) in carrying out your obligations under this Agreement, you will ensure that no act or omission of you (or any of your employees or agents) will cause us to breach any provision of the Assembly Agreements;

(d) you will provide us with all reasonably necessary assistance, data, information, and documentation, and comply with any of our reasonable directions or instructions, to enable us to comply with our obligations under the Assembly Agreements and to enable us to enforce any of our associated rights and entitlements under the Assembly Agreements;

(e) you will use best endeavours not to code or introduce viruses or similar programming effects into the our and/or Assembly Payments’ computer systems and ensure that suitable anti-virus software is operating in all relevant respects at all relevant times; and

(f) in the event a virus is found to have been introduced into our and/or Assembly Payments’ computer systems in breach of clause 3.7(e), you will provide all assistance reasonably necessary to minimise the effects of the virus and, if the virus causes a loss of operational efficiency or loss of data, you must assist us and/or Assembly Payments to mitigate the effect of the virus and to restore any such losses.

4. Intellectual property and customer Material

4.1 Licence to use your intellectual property and material

You grant us an irrevocable, non-exclusive, royalty free, transferable licence (including the right to sublicense to sub-contractors) to exercise the intellectual property in any Material you give us to use or upload to the TradeEpay Website for the purpose of providing services to you under this Agreement.

4.2 Our intellectual property

Nothing in this Agreement operates to assign to you any right or interest in intellectual property rights belonging to us.

4.3 Assembly Payments’ intellectual property

Nothing in this agreement operates to assign to you any right or interest in intellectual property rights belonging to Assembly Payments. You must not use any intellectual property belonging to Assembly Payments without first obtaining the written consent of Assembly Payments.

4.4 Warranty

You represent and warrant that you have the right to provide us with any Material contemplated by clause 4.1, and indemnify us for any loss or damage we suffer in connection with a claim or allegation by a third party that use of the Material contemplated by clause 4.1 infringes the Intellectual Property of a third party.

5. Payments and release of funds

5.1 Payments

The Contractor must pay us the Fees set out in clause 5.3 for each transaction by which the Contractor seeks payment from a Client through the TradeEpay System. The Contractor authorises us to deduct the Fees from each amount that is paid to the Contractor through the TradeEpay System, whether under clause 5.2, 6.4 or 8.

If the Client and Contractor agree under clause 5.2 to the release of funds to a Client (for example, in the case of a refund or reduction in price), the Client must pay to us the Fees set out in clause 5.3 as if they were a Contractor and authorises us to deduct those Fees from the payment.

5.2 Release of funds

If the Client and the Contractor both agree to the release of a particular portion of the funds we hold for them in the TradeEpay Trust Account to each party, and we are provided with evidence sufficient to reasonably satisfy us that there is such an agreement between the Client and Contractor, we will release those funds in accordance with that agreement and deduct any Fees payable to us under this Agreement.

If the Client does not agree to the release of a particular amount of funds from the TradeEpay Trust Account, we will deal with the funds in accordance with clauses 6, 7 and 8.

5.3 Fees

We will deduct from each payment to a Contractor the following Fees:

(a) Service Fee, for use of the TradeEpay System;

(b) Pass Through Expenses that are payable by us to third parties in relation to facilitating a payment to a Contractor; and

(c) government fees/charges, taxes and duties imposed by law and payable to a government authority.

The Service Fee payable is the amount of the Service Fee applicable at the time that the Job to which the payment relates was entered into the TradeEpay System, as notified on the TradeEpay website. The Service Fee applicable at any time will be published on the TradeEpay website.

We may change the amount of the Service Fee at any time to reflect changes in the products and services that we offer, changes in the costs we incur to provide services to Customers, inflation and in response to regulatory changes. Changes in the amount of the Service Fee take effect from the date that they are published on the TradeEpay Website, in respect of Jobs entered into the TradeEpay System from that date onwards.

Pass Through Expenses are fees charged to us by third party service providers, including Assembly Payments, that are directly referable to a payment made via the TradeEpay System. They will be charged to you at cost. We will take reasonable steps to publish the amounts of known Pass Through Expenses, or reliable estimates of the amounts of Pass Through Expenses, on our website, but our ability to do so may be limited by the third parties’ delay in providing the relevant information to us or obligations of confidence in our agreements with those third parties.

Government fees/charges, taxes and duties will be deducted from you at the cost incurred by us or at the rate or amount which we are legally obliged to deduct from a payment to you.

If a government fee/charge, tax or duty subsequently becomes payable by us in respect of a payment made to you, you agree to indemnify us against our liability to pay the fee/charge, tax or duty, and agree to pay the amount to us immediately when we request it from you.

5.4 Discretion to not make a payment

We and/or Assembly Payments may delay, block or refuse to make or process a payment if we and/or Assembly Payments believe that making that Payment or transaction may breach an Applicable Law, or that the transaction or Payment is suspicious, erroneous or fraudulent. You agree that neither we nor Assembly Payments will incur any liability in taking such action.

We shall have no liability for, and the you release us from any liability for any loss sustained or incurred by you, arising in connection with, or as a result of, any act or omission of a Regulator, Card Network, NPP Payments, BPAY Payments, a Payment System, or a participant thereof.

We may decline to enter into or conclude transactions involving certain persons or entities in compliance with laws, and will incur no liability from any action it takes to comply with such laws.

6. Clients

6.1 Application

This clause 6 only applies to you if you are using the TradeEpay System as a Client.

6.2 Payment terms

You agree to pay to us the price listed in the TradeEpay System in relation to each Job Stage into the TradeEpay Trust Account prior to the Contractor commencing work on that Job Stage. We will hold these funds as the escrow agent of both parties in accordance with clause 2.2. You are not entitled to interest on the funds we hold for you.

6.3 Confirmations

On receiving a notification from the Contractor that a Job Stage has been completed under clause 7.2, you must promptly (and in any event within 2 business days) either:

(a) enter a confirmation into the system that the relevant Job Stage is satisfactorily complete; or

(b) enter a notification in the system that the relevant Job Stage is not satisfactorily complete, including your reasons why the Job Stage is not satisfactorily complete.

6.4 Payment

On us receiving confirmation that a Job Stage has been satisfactorily completed under clause 6.3(a), you agree that payment of the price specified for that Job Stage (minus any Fees) will be released to the Contractor. If you do not confirm that a Job Stage is satisfactorily completed, and fail to dispute (in accordance with clause 6.3(b)) that the Job Stage is satisfactorily completed within 2 business days of your Contractor confirming that it is complete, we may deem you to have confirmed satisfactory completion of that Job Stage and release the relevant payment to your Contractor.

6.5 No warranties about Contractors

You acknowledge and agree that we do not verify the credentials of any Contractors who offer services using the TradeEpay System, and we are not endorsing those Contractors. When you engage a Contractor, it is your sole responsibility to verify that the Contractor is appropriately qualified, insured and licensed to perform your Job.

Nothing in clause 7.4 operates as a representation by us that a Contractor offering services through the TradeEpay System is qualified, insured and/or licensed to provide those services, or that the services will be of acceptable quality.

6.6 Client indemnity

You must indemnify us for all loss or damage (however caused) incurred or suffered by us, including any claim made against us, in connection with the personal injury or death of a Contractor or a Contractor’s personnel on your premises, or whilst carrying out a Job for you.

6.7 Notice of Job Stages not completed

If your Contractor does not complete a Job Stage by the agreed completion date or within a reasonable period of time, you may give the Contractor a notice requiring the Contractor to either:

(a) complete the Job Stage within 14 days; or

(b) within 3 days, give reasons why the Job Stage cannot be completed within 14 days, and provide an alternative date for completion of the Job Stage.

6.8 Responses to notice

If you have given a notice under clause 6.7 and:

(a) the Contractor does not complete the Job Stage within 14 days or, within 3 days of being given the notice, give reasons why it cannot be completed within 14 days, then you must provide us with evidence of the notices you have sent, and we will notify the Contractor. If the Contractor does not notify us that there is a genuine dispute between you and the Contractor within 5 business days, we will refund the amount we hold in the TradeEpay Trust Account for that Job Stage to you. If the Contractor notifies us that there is a genuine dispute between you, then we may send you a notice under clause 8.1 requiring you to resolve the dispute within 14 days, or be referred to compulsory mediation;

(b) the Contractor gives reasons for being unable to complete the Job Stage within 14 days that are not reasonably acceptable to you, or provides an alternative date for completion of Job Stage that is not reasonably acceptable to you, then you must notify us of the dispute. We may then provide you with a notice under clause 8.1 requiring you to resolve the dispute within 14 days, or be referred to compulsory mediation; or

(c) the Contractor does not complete the Job Stage within a timeframe for completion notified to the Client by the Contractor under clause 6.7(b), then you must provide us with evidence of the notices you have sent, and we will notify the Contractor. If the Contractor does not notify us that there is a genuine dispute between you and the Contractor within 5 business days, we will refund the amount we hold in the TradeEpay Trust Account for that Job Stage to you. If the Contractor notifies us that there is a genuine dispute between you, then we may send you a notice under clause 8.1 requiring you to resolve the dispute within 14 days, or be referred to compulsory mediation.

7. Contractors

7.1 Application

This clause 7 only applies to you if you are using the TradeEpay System as a Contractor.

7.2 Confirmations

You must notify the Customer through the TradeEpay System each time you complete a Job Stage.

7.3 Payment

You acknowledge and agree that the payment for the work you complete for your Client will not be released until the Client confirms each Job Stage has been satisfactorily completed under clause 6.3(a), or as determined under clause 8.

7.4 Contractor warranties

You represent and warrant to us that:

(a) you have all the necessary qualifications and licenses to perform each Job Stage which you agree to do using the TradeEpay System; and

(b) all work you perform for Clients will be done with due care and skill, in accordance with industry best practice and any Applicable Law.

7.5 Contractor indemnity

You must indemnify us for all loss or damage (however caused) incurred or suffered by us in connection with any claim against us by your Client in connection with your performance of services for that Client, including that your services were negligent, incomplete, dangerous, or defective or caused damage.

7.6 Failure to complete a job

If you receive a notice from your Client under clause 6.7, you must promptly (and within 3 business days) notify your Customer:

(a) that you will complete the Job Stage within 14 days; or

(b) give the Client reasons why you cannot complete the Job Stage within 14 days, and provide an alternative date by which the Job Stage will be completed.

7.7 Refunds and referral to mediation

If you notify the Client that you will complete the Job Stage within 14 days, or another period, then you must complete the Job Stage within that time. You agree that we may refer you and your Client for compulsory mediation as set out in clause 6.8.

8. Mediation

8.1 Compulsory mediation

If you and the Client or Contractor that you are engaging with cannot agree on whether a Job Stage has been satisfactorily completed or on a timeframe by which the Job Stage must be completed, then we may give you a notice requiring you to resolve the dispute within 14 days. Unless you and your Client or Contractor agree otherwise, if you do not resolve the dispute within 14 days of our notice to you, you must submit to mediation of the dispute in accordance with this clause 8.

8.2 Mediator

We will, in our sole discretion, select an mediator to determine the dispute. Our choice of mediator will be influenced by the nature of the dispute, the qualifications required to complete the Job Stage in dispute and the value of the payment in dispute.

8.3  Binding decision

(a) On completion of mediation, if you do not agree with the mediator’s decision, you have 14 days to commence legal proceedings against your Client or Contractor. If you do not commence legal proceedings within 14 days, you agree to be bound by and comply with the decision of the mediator.

(b) After 14 days, if you have not notified us in writing that you have commenced legal proceedings under clause 8.3(a), you agree that we may pay the money held in the TradeEpay Trust Account in relation to the relevant Job Stage to you and your Client or Contractor in the way determined by the mediator.

8.4 Costs

You agree that our costs in engaging the mediator will be deducted from the amount deposited by the Client in the TradeEpay Trust Account for the relevant Job Stage.

8.5 Cooperation

You must cooperate and act reasonably in dealing with each Client or Contractor you engage with using the TradeEpay System, and must endeavour to resolve all disputes in good faith.

Specifically you and the Client or Contractor must provide all supporting material in respect of any dispute to the mediator and the opposing party as part of the mediation process.

8.6 Indemnity

You indemnify us for any loss or damage we suffer (however caused) in connection with any claim against us in connection with mediation of a dispute under this clause 8.

9. Liability

9.1 Limitation

Subject to clauses 9.2 and 9.3, and to the extent permitted by law, our aggregate liability to you for any loss or damage you suffer in connection with the TradeEpay Website or this Agreement (however caused, including by the negligence of TradeEpay) is limited to $100.

9.2 Consequential loss

We are not liable in any circumstances for any loss of profits, loss of reputation, loss of opportunities, loss of data, consequential loss or indirect or special loss that you suffer in connection with this agreement.

9.3 Australian Consumer Law

If the Competition and Consumer Act 2010 (Cth) or any other applicable legislation states that there is a guarantee in relation to any goods or services supplied by us under this agreement and our liability under that guarantee cannot be excluded but may be limited, then our liability for a breach of that guarantee is limited, at our election:

(a) in the case of supply of services, resupply of those services or paying the cost of having those services supplied again; or

(b) in the case of goods, repair or replacement of those goods, or paying the cost of having those goods supplied again.

9.4 Third Party Inputs

You acknowledge and agree that:

(a) the provision of the Payment Processing Services and other services under this Agreement may be contingent on, or impacted by third parties, including customers, end users, suppliers or other providers and subcontractors (Third Party Inputs); and

(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no liability, for any default or breach of this Agreement or law, if such default or breach was caused by a Third Party Input.

9.5 Survival of this clause

This clause 9 will survive termination or expiry of this Agreement.

10. Relationship between the Customer and Contractor

(a) Other than clauses 6, 7 and 8, this agreement does not govern the relationship between you and the Client or Contractor (as the case may be) you are engaging with. You are responsible for agreeing the terms of your engagement with a Client or Contractor outside of this agreement.

(b) The terms which must be agreed by the Client and the Contractor include the scope of each Job Stage, the warranties given by the Contractor and whether any interest or late payment fees apply.

(c) We make no representations or warranties about the services offered by Contractors for which payment is made via the TradeEpay System, including without limitation the quality and fitness for purpose of those services. To the maximum extent permitted by law, we are not liable for any defect or breach of consumer guarantee in respect of a service provided by a Contractor.

11. Assembly Payments terms

We will engage Assembly Payments to provide services to us in order to enable us to provide the payment processing services set out in clause 2.1. The terms in this clause 11 govern your relationship with Assembly Payments.

11.1 Definitions

In this clause 11, capitalised terms have the same meaning as in the Assembly Payments Payment Processing Services Agreement as in force from time to time, available at https://assemblypayments.com/company/policies/payment-services-agreement/.

11.2 Disputes involving Assembly

(a) Agreement to Arbitrate. Notwithstanding anything herein to the contrary, all disputes, claims and controversies between (x) Assembly on the one hand, and (y) a Customer, Platform Buyer, Subscriber or Platform Seller, on the other hand, shall be resolved exclusively through final and binding mediation, rather than in court, pursuant to this clause 11.2. This agreement to mediate is intended to be broadly interpreted.

(b) Procedure. The law of New South Wales, Australia shall apply to any mediation proceeding under this clause 11.2. The mediation shall be conducted in English and shall be finally settled in accordance with the Australian Center for International Commercial Arbitration (“ACICA”).

(i) if the amount in controversy is less than USD $100,000, a single arbitrator to be mutually agreed by the parties to such dispute, provided, that, if the parties cannot come to an agreement in respect of the selection of the arbitrator within seven (7) days of delivery of the notice to arbitrate, such arbitrator shall, at the request of either party, be nominated by the ACICA, who shall serve as the “appointing authority” as such term is defined in the ACICA.

(ii) if the amount in controversy is equal to or greater than USD $100,000, then such dispute shall be decided by a panel of three (3) arbitrators, with Assembly and the other party to the dispute each selecting an arbitrator and the two arbitrators so selected appointing a third arbitrator.

The decision of the arbitrator(s) shall be final and non-appealable and binding upon the parties, and may be enforced in any court of competent jurisdiction, and no party shall seek redress against the other in any court or tribunal, except solely for the purpose of obtaining execution of the arbitral award or of obtaining a judgment consistent with the award. The arbitrator shall be guided by the Terms and Conditions of this Agreement which shall be binding upon them.

Each party shall bear its own costs and expenses associated with the mediation and shall each pay an equal share of the arbitrators’ and administrative fees of mediation; provided, that the arbitrator may provide for a different allocation of cost, expenses and attorney’s fees in the final award.

(c) Prohibition of Class and Representative Actions and Non-Individualized Relief. Platform Buyer, Platform Seller, Subscriber and Customer agree that they each may bring claims against Assembly only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless Assembly agrees otherwise, the arbitrator(s) may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator(s) may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Assembly users.

11.3 Privacy

TradeEpay uses Assembly as its third party service provider for Payment Processing Services. By buying or selling on www.tradeepay.com.au you agree to be bound by Assembly’s Privacy Policy. Assembly’s Privacy policy is available at https://assemblypayments.com/company/policies/privacy-policy and hereby consent and authorize TradeEpay and Assembly to share any information and payments instructions you provide with one another and, to the extent required to complete your transactions, with any third party service provider(s). By listing or selling items on www.tradeepay.com.au you also agree to be bound by Assembly’s User Terms which are located at: https://assemblypayments.com/company/policies/end-user-agreement

11.4 Limitation of liability

In no event shall Assembly be liable to any Platform Buyer, Platform Seller or Subscriber for any actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise (collectively, “Losses“), of any kind whatsoever, arising out or relating to their respective use of, or inability to use, the Payment Processing Services, regardless of the legal theory under which such Losses are sought. IN THE EVENT THE FOREGOING IS NOT ENFORCEABLE FOR ANY REASON, THEN ASSEMBLY’s MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATING TO ANY CLAIM (OR SERIES OF RELATED CLAIMS), BY ANY PLATFORM BUYER, PLATFORM SELLER, OR SUBSCRIBER ARISING FROM OR RELATING TO THE PAYMENT PROCESSING SERVICES SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE PAID OR PAYABLE FOR THE GOODS, ASSETS OR SERVICES WHICH ARE THE SUBJECT OF THE TRANSACTION(S) GIVING RISE TO THE PAYMENT CLAIM.

SO THERE MAY BE NO DOUBT, IN THE EVENT OF ANY CONFLICT BETWEEN THE AGREEMENT AND THE CUSTOMER’s PLATFORM USER AGREEMENT, THE AGREEMENT SHALL PREVAIL.

11.5 Language related to Assembly’s Privacy Policy and User Agreement

[Platform Seller] acknowledges that Assembly will provide to the [Platform Seller] services for the collection of the transaction proceeds  (net of platform fees payable to TradeEpay Australia Pty Ltd)  in respect of a Transaction or Transactions.

By selling on www.TradeEpay.com.au, [Platform Seller] agrees to  Assembly collecting [Platform Seller’s] personal information from www.TradeEpay.com.au, or from the financial institution involved in the Transaction, in order to provide [Platform Seller] with services.  If the personal information is not provided, Assembly may not be able to collect the transaction proceeds for the [Platform Seller].

Assembly may disclose [Platform Seller’s] personal information to a service provider to verify [Platform Seller’s] identity or to enable Assembly to provide the services.   The disclosure to service providers may include those located overseas or who may host or access your personal information overseas.

The countries we may transfer, disclose or store [Platform Seller’s] personal information to are:  the United States of America, United Kingdom, New Zealand, Philippines and Singapore.  Where information is transferred, disclosed or stored overseas, Assembly will seek to ensure the recipient has security systems to prevent misuse, loss or unauthorised disclosure in line with Australian laws.

Assembly may also use [Platform Seller’s] personal information for other purposes such as marketing and promotion of our products and services, market research and development, customer communications and surveys, direct marketing, and creation of statistical information and data analytics.

If [Platform Seller] wishes to opt out of receiving direct marketing, [Platform Seller] may contact Assembly at [email protected]

A copy of Assembly’s Privacy Policy can be obtained at: https://assemblypayments.com/privacy.

By selling items on www.TradeEpay.com.au, the Seller also agrees to be bound by Assembly’s User Agreement which are located at: https://assemblypayments.com/policies/end-user-agreement/.

Please fully read Assembly’s User Agreement and in particular, note that Assembly or any of its Representatives are not liable for any refunds or reversals of any Transactions and are not liable to [Platform Seller] for any Losses (as that term is defined in Assembly’s User Agreement) arising out of or in connection with [Platform Seller’s] use of Assembly’s services.

If Assembly’s disclaimer of liability is not enforceable for any reason, then, Assembly’s maximum aggregate liability arising from or relating to any claim (or series of related claims) arising out of or in connection with Assembly’s services to [Platform Seller] shall not exceed the aggregate amount of 100% of the Fees (as that term is defined in Assembly’s User Agreement) received in relation to [Platform Seller’s] Transactions during the 12 month period preceding the date such claim(s) is/are made. In no event shall Assembly be liable for any lost profits, data, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to the services.

12. Privacy and data use

12.1 Privacy

You consent to our use of your personal information in accordance with our privacy policy, which is available on the TradeEpay Website.

You acknowledge and agree that personal information about you and your customers may be disclosed to Assembly Payments and dealt with in accordance with Assembly Payments’ privacy policy (available at https://assemblypayments.com/company/policies/privacy-policy/). You agree to notify your customers about the disclosure of their personal information to Assembly Payments and the availability of Assembly Payments’ privacy policy, and obtain their agreement to such disclosure.

You warrant to us that, in relation to personal information about your customers that you provide to us, the relevant customer agrees to the disclosure of their personal information to us and to Assembly Payments.

12.2 Use of Data

You acknowledge and agree that we and Assembly Payments may use information about your usage of the TradeEpay System and payment transactions effected through the TradeEpay System for the following purposes:

(a) to monitor and analyse any aspect of the usage, quality, and value of the services provided to you;

(b) to analyse any aspect of the efficiency and effectiveness of the services provided to you, with, for example, the aim of ensuring continuous improvement;

(c) to develop new products and services, or to enhance existing products and services for the ultimate benefit of Customers; and

(d) to measure trends, and to understand and develop industry benchmarks for the benefit of Customers.

13. Disclaimer

13.1 Defence

We may plead these terms in bar to any claim, action, proceeding or suit brought by you, against TradeEpay its licensors or related bodies corporate, for any matter arising out of any TradeEpay transaction or otherwise in respect of these terms.

13.2 No warranties

To the extent permitted by law:

(a) this website and all Material are provided on an “as is” basis without any warranties or guarantees of any kind. You should seek your own legal advice in this regard:

(b) all statutory and implied guarantees, warranties, and conditions of any kind, including but not limited to guarantees, warranties and conditions of merchantability and fitness for a particular purpose are expressly disclaimed;

(c) TradeEpay, its directors, employees, related bodies corporate and suppliers do not warrant or make any representations about:

(iii) the correctness, accuracy, timeliness, completeness, reliability, quality or otherwise of the Material

(iv) the compliance of the Material with any Applicable Laws; the use of the Material to comply with any Applicable Laws, or your obligations under Applicable Laws, including but not limited to any occupational health and safety or workplace laws; or

(v) the storage, backup, integrity or security of the Content.

The use of the website, the Services and the Material is at your own risk.

(d) TradeEpay, its directors, employees, related bodies corporate and suppliers, do not warrant that they will be able to prevent any illegal, harmful or inappropriate use, modification or alteration of the website, Material or Content, or that they will give notice of such use, modification or alteration;

(e) TradeEpay, its directors, employees, related bodies corporate and suppliers, do not warrant that your access to the website, Material and Content will be uninterrupted or that the website will operate error free, that any defects will be corrected or that this website, Material, Content and their servers are free of computer viruses and other harmful data, code, components or other material; and

(f) if your use of the website or the Material results in the need for servicing or replacing equipment or data (including the Content), TradeEpay, its directors, employees, related bodies corporate and distributors are not responsible for those costs.

13.3 No reliance

You agree that you have not relied on any information or advice given or statement or representation made (whether negligently or not) by TradeEpay or any person purporting to represent TradeEpay in relation to this website or the Material. You acknowledge that it is your responsibility to seek independent advice regarding your obligations under and compliance with Applicable Laws.

13.4 No liability for Customer conduct

TradeEpay does not endorse the platform or website of any Customer, or assume responsibility or liability for the accuracy of any material contained therein, or any infringement of third party intellectual property rights arising therefrom, or any fraud or other crime facilitated thereby.

13.5 No liability for third parties’ conduct

In no event will TradeEpay be liable for any act or omission of any third party, including, but not limited to, a Customer’s financial institution, any payment system, any third party service provider, any provider of telecommunications services, internet access or computer equipment or software, any mail or delivery service or any payment or clearing house system or for any circumstances beyond TradeEpay’s control (including but not limited to, act of god, fire, flood or other natural disaster, war, riot, strike, terrorism, act of civil or military authority, equipment failure, computer virus, infiltration or hacking by a third party, or failure or interruption of electrical, telecommunications or other utility services).

14. Indemnity

You agree to indemnify, defend, and hold harmless TradeEpay and its related bodies corporate, and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns (collectively, Representatives), from any and all actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs (including legal, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise (collectively, Losses), arising directly or indirectly out of or relating to:

(a) any misrepresentation or breach by you of your representations and warranties contained in this Agreement;

(b) any failure by you to comply with the any term of this Agreement;

(c) your gross negligence or willful/intentional misconduct;

(d) if you are a Client, any claim against us by a Contractor in relation to fees for services provided to you by the Contractor; and

(e) if you are a Contractor, any claim against us by a Client or any other person in relation to services provided by you to a Client.

15. Term and termination

15.1 Term

This Agreement continues until terminated by you or us as permitted by this clause 15.

15.2 Termination

(a) You may terminate this Agreement for convenience at any time, provided that you do not have a Transaction open in your account.

(b) We may terminate this Agreement and your access to the TradeEpay Website at any time by written notice to you. If we do this, we will refund any of your funds held in the TradeEpay Trust Account to you.

(c) We may terminate this Agreement immediately by written notice to you if

(i) you breach this Agreement and fail to remedy that breach within 14 days of us giving you a written notice requiring you to do so; or

(ii) we reasonably believe that you have used the TradeEpay Website in a way not permitted by law.

15.3 Survival

On termination of this Agreement, clauses 9, 4, 5 and 8.4, and any other clause intended by implication to survive termination, will continue to operate.

15.4 Blocking of IP addresses

We may block any IP address from accessing the TradeEpay Website at any time in our discretion, if we have reasonable grounds to believe that the IP address has been used, or will likely be used, to use the TradeEpay Website in a manner contrary to these Terms and Conditions.

16. General

16.1 Governing law and jurisdiction

This Agreement are governed by the laws of New South Wales, Australia.

You agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, including the New South Wales Division of the Federal Court of Australia, and any courts exercising appellate jurisdiction from those courts, in relation to any dispute, claim or matter arising under this Agreement. You waive any right to object to the jurisdiction of those courts on the ground of the court being an inappropriate forum for the determination of the dispute

16.2 Use in Australia only

The TradeEpay Website is designed for use within Australia. You must not use the TradeEpay Website for any services that are carried out outside of Australia.

16.3 Entire agreement

These Terms and Conditions constitute the entire agreement between the you and TradeEpay and replace and supersede any and all oral agreements that you may have with us, as well as any prior written agreements with us.

16.4 Amendment

We reserve the right to amend these Terms and Conditions at any time, to reflect changes to our product and service offering, changes to our external service providers’ Terms and Conditions and regulatory changes. In such circumstances, we will place a notice on the TradeEpay Website advising that our Terms and Conditions have changed. Changes to the Terms and Conditions will take effect from the time they are published on the TradeEpay Website. You should visit this page and www.TradeEpay.com.au/terms-and-conditions periodically to review the Terms and Conditions.

Changes to the Terms and Conditions that affect a Job Stage or payment for a Job Stage apply only to Job Stages entered into the TradeEpay System after the change takes effect.

Your use and/or continued access to and participation in the website after notice of the amended Terms and Conditions has been placed on the site, constitutes an agreement by you that you accept and agree to abide and be bound by the Terms and Conditions as amended. Should you object to any of the Terms and Conditions or any amendments your only recourse is to immediately discontinue your access, use or participation in the TradeEpay Website.

16.5 Waiver

If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.

16.6 Assignment

You must not assign your rights under this Agreement without our prior written consent.

We may assign our interest under this Agreement to any person without your consent. We may also novate this Agreement to a third party purchaser of the assets of TradeEpay without your consent.

16.7 Notices

All notices required under this Agreement must be in writing and given by email to the recipient’s nominated email address, and shall be deemed delivered on the date they are available for download by the recipient.

Our nominated email address for notices is [insert].

Your nominated email address for notices is the email address that you supplied to us when registering to use the TradeEpay System, or the email address that you most recently supplied to us through the TradeEpay System.

16.8 Costs and expenses

Except as may be expressly provided for elsewhere in this Agreement, each party will be responsible for all costs and expenses incurred by it in performing its obligations under the Agreement.

16.9 Set-off

Despite anything to the contrary, TradeEpay may set-off or deduct from any monies payable to the Customer under this Agreement any liability or any entitlement TradeEpay may have against the Customer (whether under this Agreement or otherwise).

16.10 Force majeure

If performance the Agreement is interfered with or delayed by an act of God, civil unrest, war, hostilities, terrorism, seizure or expropriation of assets (other than that caused by the actions or omissions of a party), or other destructive event outside a party’s immediate control (a Force Majeure Event), the affected party shall give written notice to the other party and the affected party shall be excused from such performance during, but not longer than, the continuance of such condition. Each party shall bear their own costs arising from the Force Majeure Event and shall take all reasonable steps to find ways to perform their obligations despite the Force Majeure Event. If the Force Majeure Event continues for more than fifteen (15) consecutive days, either party may immediately terminate the Agreement on giving written notice to the other party.

17. Definitions and interpretation

17.1 Definitions

Agreement means the contract between you and us, the terms of which are set out in these Terms and Conditions.

Applicable Law in relation to any person, action or thing means the following in relation to that person, action or thing:

(a) any law, rule or regulation (of any jurisdiction) applying to you or us;

(b) any obligation under any licence (in any jurisdiction) applying to you or us;

(c) any lawful and binding determination, decision or direction of a regulator applying to you or us; and

(d) any non-binding guidance or pronouncements by a regulator which, though not binding, are customarily followed by persons subject to the regulator’s jurisdiction.

Assembly Payments means Assembly Payments Platform Pty Ltd (ABN 96 637 632 645).

Assembly Agreement means an agreement between us and Assembly Payments in connection with Payment Processing Services.

Content means information, data, text, emails, files, names, likenesses, logos, artwork, graphics, images, video, audio, HTML or other web design code, image maps, software applications, bids and other content or material uploaded, sent or communicated by you or on your behalf to the website.

Contractor means a person supplying services and using the TradeEpay System as an escrow and communication system.

Client means a person procuring a Contractor’s services and using the TradeEpay System as an escrow and communication system.

Customer means a Client or Contractor, as the case may be.

Fee means an amount payable under clause 5.3.

Intellectual Property means all intellectual property rights in Australia and throughout the world, including copyright, patent rights, registered and unregistered trade marks and design rights.

Job means services provided, or agreed to be provided, by a Contractor to a Client.

Job Stage means a particular section of a Job specified in the TradeEpay System.

Material includes images, text, diagrams, photographs, drawings and graphs.

Payment Processing Services means the services to be provided under clause 2.1.

Services means the Services to be provided to us under clause 2.

TradeEpay System means the TradeEpay Website working in together with our hardware and software and the TradeEpay Trust Account.

TradeEpay Trust Account means the escrow account used by us.

TradeEpay Website means the website at TradeEpay.com.au.

Transaction means an engagement between a Client and a Contractor through the TradeEpay Website.

You means you, a Contractor or Customer.

We or us means TradeEpay Australia Pty Ltd (ACN 632 920 408).

17.2 Interpretation

In these Terms and Conditions:

(a) the singular includes the plural and vice versa;

(b) references to “person” includes an individual, firm, company, corporation, unincorporated body of persons, organisation or trust, and any governmental authority, in each case whether or not having separate legal personality;

(c) references to “including” and other similar words are not to be treated as words of limitation; and

(d) references to legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it; and

(e) the headings in this Agreement are for ease of reference only and shall not be taken into account in the construction or interpretation of any provision to which they refer.

If any court determines that any provision of these Terms and Conditions is invalid or unenforceable, any invalidity or unenforceability will affect only that provision and will not make any other provision of these Terms and Conditions invalid or unenforceable and such provision shall be modified, amended, or limited only to the extent necessary to render it valid and enforceable.