- Description of the Service - The Services are Internet-based transaction management services performed by Payment Exchange and escrow services provided by Internet Escrow Services, Inc., a California corporation “IES,” acts as escrow agent in a Transaction, which Services are intended to facilitate the completion of the underlying transaction under the terms of this Agreement, the Site and the applicable Transaction Escrow Instructions.
- Limits on the Services - The Services are only available for lawful items and items not otherwise excluded by Section 4 below. Limitations on the Services may apply and can be found on the Site or in the General Escrow Instructions or Transaction Escrow Instructions. Only registered Users may use the Services. In order to register, you must supply all information required on the Site. Applicable state or federal laws and regulations may further limit the Services.
- Prohibited Transactions - Users shall not utilize the Site or the Services in connection with any Transaction that is illegal or involves any illegal items, or is for any illegal purpose; involves any obscene material; involves any munitions or firearm; involves pirated software, DVD or videos or item(s) otherwise infringing copyrighted works; involves illegal drugs or controlled substances; involves real property or any interest in real property, the sale or transfer of liquor licenses, the sale of a business (bulk sale), the transfer of title to a business entity, fund or joint control escrows, mobile homes or manufactured homes or the refinancing of either, reservation deposits of any kind, or promissory notes, mortgages or deeds of trust; or involves transactions directly or indirectly involving persons (individuals or entities) with whom U.S. persons are prohibited from engaging pursuant to sanctions and export controls administered by the Departments of Treasury, Commerce and State.; or involves transactions directly or indirectly involving persons (individuals or entities) with whom U.S. persons are prohibited from engaging pursuant to laws and regulations administered by the Departments of Treasury, Commerce and State. In addition, Payment Exchange, in its sole discretion, may refuse to complete any Transaction that Payment Exchange has reason to believe is unauthorized or made by someone other than you, may violate any law, rule or regulation, or if Payment Exchange has reasonable cause not to honor it. Each User agrees to indemnify and hold Payment Exchange harmless for losses resulting from any use or attempted use of the Services in violation of this Agreement.
- Rejection of Payment - Since the use of a bank account, credit card or debit card account, or the making of an electronic funds transfer may be limited by your agreement with your financial institution and/or by applicable law, Payment Exchange is not liable to any User if Payment Exchange does not complete a Transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an Account. Payment Exchange may post operating rules related to payment on the Site and change such rules from time to time.
- General Conditions of Use - If you arrive at the Site through entities linked and/or integrated with Payment Exchange or otherwise by or through a third party (e.g., an auction, exchange, or Internet-based intermediary that hosts electronic marketplaces and mediates transactions among businesses), then you authorize such third party to transfer relevant data to Payment Exchange to facilitate the Transaction. You represent and warrant that all information you provide to Payment Exchange or to such third party will be true, accurate and complete. The party entering into this Agreement on behalf of any User represents and warrants that he/she is authorized to do so and to bind the User and is a natural person of at least eighteen (18) years of age. In order to initiate and commence a Transaction, all Users to a Transaction must register at the Site, agree to all terms in the General Escrow Instructions and agree to the Transaction Escrow Instructions.
- Obligations of Sellers - On the Transaction Detail Screens, each Seller to a Transaction must designate an Account to which payment for the Transaction will be made. Each Seller authorizes IES and its authorized agents to initiate credit entries to such Seller's Account for payment of the purchase price, or applicable balance due, and to debit Seller's Account to discharge Seller's obligations. Each Seller in a Transaction shall deliver the items set forth in Transaction Detail Screens directly to the Buyer (or Buyers), at the address specified by such Buyer as shown on the Payment Exchange website and on the terms and conditions set forth in the Transaction Escrow Instructions and General Escrow Instructions. Seller shall use a delivery service that provides a confirmation of delivery and Seller shall provide Payment Exchange with a tracking or reference number for the shipment of the goods. Seller gives Payment Exchange permission to act as its agent in communicating with the shipping company regarding the notice of the delivery of the goods. In the event Payment Exchange does not receive notice of shipment from Seller within ten (10) calendar days of notification from Payment Exchange's notice to Seller to ship the items, Seller authorizes Payment Exchange to return the escrowed funds (excluding Payment Exchange fees) to Buyer. In the event of a return of the items by Buyer, Seller shall notify Payment Exchange of the receipt of the returned items. Upon receipt of such notice from Seller, the Seller's five (5) day inspection period shall commence. In the event Seller accepts the returned items within the inspection period or fails to act within the inspection period, Payment Exchange shall remit the escrowed funds (excluding Payment Exchange fees) to Buyer. If Seller notifies Payment Exchange of its non-acceptance of any returned items within the Seller's inspection period, then Payment Exchange will retain the escrow funds pending resolution of the dispute or take other action as authorized. Notwithstanding anything to the contrary above, if all Users to a Transaction agree on the Transaction Detail Screens that there is no shipping required, then no party hereto will have any obligation under this Agreement with respect to shipping.
- Obligations of Buyers - On the Transaction Detail Screens, Buyer must designate a payment mechanism and an Account from which the purchase price and related fees (unless such fees are to be paid by Seller) will be obtained for the deposit into escrow. Depending on the amount of the Transaction and the currency selected for the Transaction, Buyer may remit the necessary funds via various methods, which may include corporate credit card, charge card, debit card or purchasing card, check (cheque), cashier's check, money order, or wire transfer. In the case of wire transfers, Buyer will initiate the wire to an account designated by Payment Exchange on or before the date set forth in the Transaction Detail Screens. Regardless of the payment method, Buyer authorizes Payment Exchange and Payment Exchange authorized agents to initiate credit or debit transactions, as applicable, to obtain the purchase price and fees due for a Transaction and to initiate any debit or credit entries or reversals, as the case may be, as may be necessary to correct any error in a payment or transfer and to discharge Buyer's obligations under Section 22 of this Agreement. Payment Exchange will deposit funds received from Buyer into an escrow trust account maintained by Payment Exchange (the "Escrow Account"). Unless otherwise requested as specified in the following sentence, escrowed deposits do not earn interest for Buyer or Seller. If you anticipate an extended closing of the Transaction, then you may request and approve an instruction to have Payment Exchange place Buyer's funds into an interest bearing account for the benefit of Buyer or Seller. If interest is to accrue to the benefit of the Seller, then both Buyer and Seller must request and approve the establishment of the interest bearing account. If this request is made, then Payment Exchange will charge the account of the party to whom the interest accrues an additional nonrefundable service charge of $100.00, which must be paid in advance.
Buyer shall notify Payment Exchange of the receipt or non-receipt of the items on the date the merchandise is received or the Buyer Inspection Period is started. Buyer shall notify Payment Exchange of the Buyer's acceptance or rejection of the items before the Buyer's Inspection Period expires. Upon receipt of notice from Buyer that the items have been received and accepted, Payment Exchange shall transfer the payment amount (less any amount payable to Payment Exchange for Payment Exchange fees) to Seller's Account. Transfer to a Seller generally will be initiated within the next business day from the day on which notice of acceptance of the items is received from the Buyer. If Buyer has not notified Payment Exchange of the non-receipt or rejection of the items during the Buyer's Inspection Period, then Buyer authorizes Payment Exchange to remit the escrowed funds (excluding Payment Exchange fees) to the Seller. Buyer shall follow the procedures set forth on the Site in the event the items are rejected.
- Obligations of Brokers - On the Transaction Detail Screens, each Broker to a Transaction must designate an Account to which the Broker Fee payment will be made. Each Broker authorizes IES and its authorized agents to initiate credit entries to such Broker's Account for payment of the Broker's commission, and to debit Broker's account to discharge Broker's obligations. Each Broker in a Transaction shall provide Buyer email, Seller email, and Transaction details including purchase price, merchandise description, inspection period and which party is responsible for the Broker and Escrow fees.
- Our Responsibilities - Payment Exchange is obligated to perform only those duties expressly described in this Agreement and the General Escrow Instructions. Payment Exchange shall not be liable for any error in judgment, for any act taken or not taken, or for any mistake of fact or law, except for gross negligence or willful misconduct (subject to the limitations in Section 17 below). Payment Exchange may rely upon any notice, demand, request, letter, certificate, agreement or any other document which purports to have been transmitted or signed by or on behalf of a User indicated as the sender or signatory thereof and shall have no duty to make any inquiry or investigation. In the event that Payment Exchange is uncertain as to Payment Exchange duties or rights under this Agreement, receives any instruction, demand or notice from any User or financial institution which, in Payment Exchange's opinion, is in conflict with any of the provisions of this Agreement, or any dispute arises with respect to this Agreement or the Escrowed Funds, Payment Exchange may (i) consult with counsel of our choice (including our own attorneys) and any actions taken or not taken based upon advice of counsel shall be deemed consented to by you, or (ii) refrain from taking any action other than to retain the funds in escrow for delivery in accordance with the written agreement of the Users, the final decision or award of an arbitrator pursuant to an arbitration commenced and conducted in accordance with the General Escrow Instructions or a final, non-appealable judgment of a court of competent jurisdiction, or (iii) discharge our duties under this Agreement by depositing all funds by interpleader action with a court of competent jurisdiction in accordance with the procedures outlined in the General Escrow Instructions.
Payment Exchange may, at any time, give notice of Payment Exchange's intent to resign as Escrow Agent. If, within ten (10) days of such notice, Payment Exchange has not received notice from all Users in a Transaction that they have designated a substitute escrow agent (which notice shall identify the substitute escrow agent), Payment Exchange may discharge Payment Exchange duties under this Agreement by depositing all escrowed funds with a court of competent jurisdiction. If an alternate Escrow Agent is so designated, Payment Exchange shall be discharged from Payment Exchange duties under this Agreement, the General Escrow Instructions and the Transaction Escrow Instructions by delivering all escrowed funds to such person or entity. Upon payment of the escrow funds pursuant to this Agreement, Payment Exchange shall be fully released from any and all liability and obligations with respect to the escrow funds and the Transaction.
- Canceling a Transaction - If a Transaction cannot be completed for any reason, including cancellation by Payment Exchange for any reason, Payment Exchange will notify each User in such Transaction by e-mail, to the e-mail address each has provided to Payment Exchange. In Payment Exchange's sole discretion, Payment Exchange may cancel any Transaction if each User to a Transaction fails to agree on the terms as required in the Transaction Details Screens by clicking the "Agree" button as requested on the Site. You may cancel a Transaction as provided in this Agreement, on the General Escrow Instructions or in the Transaction Escrow Instructions.
- Questions about the Services - You may inquire about payments made through the Service by calling the toll-free number that appears on the Site or by filling out the customer service form. If you believe an error has been made or there has been any unauthorized use of your Account or the Services, you agree to call or send an e-mail as soon as possible, but no later than forty-eight hours after you became aware of an error. When you contact Payment Exchange, please be prepared to provide your name, Payment Exchange reference number and your email address you have registered on the Payment Exchange site.
- Statements, Verification - You agree that all disclosures and communications regarding this Agreement and the Service shall be made by e-mail or on the Site, unless the parties make other arrangements as set forth in the General Escrow Instructions.
- Digital Identification - You understand and agree that Payment Exchange will create, issue, and verify a digital identification (a "Digital ID") for each User. This Digital ID is attached to each accepted electronic document and notification e-mails. You agree that your Digital ID is a valid "Electronic Signature." Please review the General Escrow Instructions for more information about Payment Exchange's use of the Digital ID.
- Fees - Unless otherwise agreed upon by each User in the Transaction, Buyer agrees to pay the fees for the Services that are disclosed on the Site at the time the completed Transaction Escrow Instructions are agreed to by all such Users, as well as any other fees, including, without limitation, third party service fees (e.g., shipping, appraisal, inspection, etc.). Once paid, Payment Exchange fees are nonrefundable. Payment Exchange fees may change from time to time in Payment Exchange's absolute and sole discretion. Payment Exchange is not responsible for payment of any sales, use, personal property or other governmental tax or levy imposed on any items purchased or sold through the Services or otherwise arising from the Transaction.
- Security - Payment Exchange uses secure sockets layer ("SSL"), a security protocol that provides data encryption, server authentication, and message integrity for connections to the Internet to ensure that the data you provide Payment Exchange is not transmitted over the Internet unencrypted and cannot be viewed by unauthorized individuals. Payment Exchange has also implemented a security system requiring a user ID and a password to access your transactions on the Site. You agree not to give your password to any other person or entity and to protect it from being used or discovered by anyone else.
- Disclaimers - You expressly agree that your use of the Services is at your sole risk. The Services are provided on a strictly "as is" and "as available" basis. Payment Exchange MAKES NO WARRANTY WITH REGARD TO THE UNDERLYING TRANSACTION, ANY ITEMS OBTAINED BY YOU THROUGH THE USE OF THE SITE OR THE SERVICES, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE.
Payment Exchange expressly disclaims any and all express and implied warranties, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Payment Exchange shall not be liable or responsible for those guarantees, warranties and representations, if any, offered by any Seller of items. No advice or information, whether oral or written, obtained by you from Payment Exchange or through the Services shall create any warranty not expressly made herein.
You acknowledge and agree that Payment Exchange does not endorse the website of any third party, or assume responsibility or liability for the accuracy of any material contained therein, or any infringement of third party intellectual property rights arising therefrom, or any fraud or other crime facilitated thereby. In no event will Payment Exchange be liable for any act or omission of any third party, including, but not limited to, your 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 Payment Exchange's control (including but not limited to, fire, flood or other natural disaster, war, riot, strike, terrorism, act of civil or military authority, equipment failure, computer virus, infiltration or hacking by a third party, or failure or interruption of electrical, telecommunications or other utility services).
- Limitation of Liability - TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Payment Exchange NOR ITS AFFILIATES, SHALL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, RELATING TO YOUR USE OF THE SITE OR THE SERVICES OR YOUR INABILITY TO USE THE SITE OR THE SERVICES.
- Termination of Services - Payment Exchange may suspend or terminate your use of the Services at any time, without notice for any reason, in Payment Exchange's sole discretion. Except as warranted by risk to the security, privacy or integrity of the Services, Payment Exchange will attempt to provide you with prior notice of the suspension or termination of the Services by sending you an e-mail, but Payment Exchange is not obligated to do so. You shall remain liable for all Transactions you initiate through the Services prior to such termination, and the performance of your obligations, including but not limited to, the delivery of the items and the payment of all amounts you owe prior to termination or discontinuation of your use of the Services. You agree to pay all costs and expenses (including reasonable attorneys' fees) that Payment Exchange may incur in order to (a) collect any amounts you owe under this Agreement, the General Escrow Instructions, or the Transaction Escrow Instructions or (b) to initiate an arbitration or judicial proceeding to resolve a dispute between Buyer and Seller, as set forth in the General Escrow Instructions.
- Non-Transferability of the Services - You may not assign this Agreement or the Escrow Instructions to any other person or entity. Your right to use the Services shall not be sold or transferred to any other person or entity without the prior written consent of Payment Exchange. Payment Exchange may assign this Agreement upon notice to you. Any assignment or transfer in violation of this provision shall be null and void.
- Modifications - Payment Exchange reserves the right to change this Agreement, or any portion of it, at any time, without prior notice, provided that no such change will apply to a Transaction once the Users to such Transaction have agreed to the Transaction Escrow Instructions. You understand that the most recent version of this Agreement will be located on the Site.
- Indemnification - You agree to indemnify and hold Payment Exchange, Payment Exchange affiliates and their respective officers, directors, shareholders, employees and assigns, harmless from any claim, demand, expense or damage, including reasonable attorneys' fees and court costs, arising from or relating to your use of the Services or any violation of this Agreement, the rules contained on the Site or the Transaction Escrow Instructions, including, without limitation, payment of Payment Exchange fees and any charge backs from a card organization or reversal or nonpayment of any credit or debit entry.
Payment Exchange may assign this Agreement to any current or future affiliated company and to any successor in interest. Payment Exchange also may delegate certain of Payment Exchange rights and responsibilities under the Agreement to independent contractors or other third parties.
Revised July 16, 2012.