Installment Agreement

 

AGREEMENT TERMS

 

This Afterpay Installment Agreement “Agreement” includes the Final Payment Schedule that is sent after you complete your purchase with the merchant. The Final Payment Schedule will supersede and replace the Payment Schedule shown above.

Use of the words “you” and “your” throughout this Agreement refer to the borrower listed above, and the words “we,” “us,” and “our” refer to the Originator listed above or its assignees. As a condition of the disbursement of proceeds hereunder you agree to make a down payment equal to a portion of the final purchase amount confirmed by the merchant identified above which shall be due prior to disbursement of any proceeds described below.

 

PROMISE TO PAY:  The Agreement governs your repayment to us in connection with funds we disbursed at your direction and on your behalf to an approved merchant to acquire certain merchandise or services that you have selected. You promise to pay the sum of your down payment and other payment amounts under this Agreement as it may be revised by the Final Payment Schedule (inclusive of all taxes and fees), according to the amounts displayed above under in the “Due Today” and “Future Payment Schedule” (together, your “Payment Schedule”) plus all other charges accruing under this Agreement until paid in full and you understand that your final “Due Today” amount and final “Future Payment Schedule” will be provided to you electronically as a supplement to this Agreement (the “Final Payment Schedule.”)

 

THERE ARE NO FINANCE CHARGES AND NO INTEREST PAYMENTS ASSOCIATED WITH THIS AGREEMENT.

 

Please note that Section 9 of this Agreement includes provisions that govern how claims we may have against each other are resolved. These provisions limit our liability and may require arbitration for a dispute that you assert against us. The Agreement includes important terms regarding your rights related to fees, dispute resolution and governing law.

This Agreement incorporates by reference all terms and conditions of our U.S. Terms of Service (available at https://www.afterpay.com/terms-of-service) and U.S. Privacy Policy (available at: https://www.afterpay.com/privacy-policy) unless explicitly superseded by this Agreement. In the event of a conflict with the U.S. Terms of Service or U.S. Privacy Policy, this Agreement shall govern with respect to the subject matter of such conflicting terms.

 

1. Use of Proceeds and Disbursement Authorization

By electronically accepting this Agreement and completing a purchase, you agree to pay the down payment amount to us, and we agree to disburse the proceeds under this Agreement to the merchant listed above. You promise to repay us the amounts disclosed in your Final Payment Schedule provided to you electronically as part of this Agreement. You also agree to pay any applicable Late Fees (as defined below) you incur under this Agreement.

 

2. Installment Payments

When you accept this Agreement and place an order, you will identify your preferred method of payment, designating an eligible US-issued credit or debit card as your “Payment Method.”  In addition to any required down payment, you must make either three (3) or four (4) payments to us (each, an “Installment Payment”) in the amounts shown under “Future Payment Schedule” in your Final Payment Schedule. You are responsible for ensuring that you have sufficient funds available to make Installment Payments on the dates specified in your Final Payment Schedule.

If you make all Installment Payments in full on their due dates, your final payment will be made on the Maturity Date identified in the Final Payment Schedule. You may prepay all amounts due under this Agreement in whole or in part at any time without a penalty and may make any payment early, in whole or in part, without penalty or premium at any time.

If you would like to change your payment method or make alternate payment arrangements, you are able to do so online or if the specific feature is not available, or if you have further issues or questions, you may contact us at [email protected] The Payment Method you select and any necessary authorization will not affect your obligation to pay when due all amounts payable under this Agreement. The foregoing authorization is in addition to, and not in limitation of, any rights of setoff we may have under applicable law.

 

3. Late Payments

There are no finance charges or interest associated with this Agreement. However, if an Installment Payment is not paid on or prior to the due date specified in the Final Payment Schedule and remains unpaid for a period of ten (10) days after the due date (or such additional grace period required by applicable law), the Late Fee indicated above in this Agreement will be imposed, up to a maximum of $8.00 and which in no event will exceed the maximum late fee permitted by applicable state law. Additionally, the aggregate sum of Late Fees associated with a particular order will not exceed 25% of the order value at the time of purchase. Thus, lower value purchases may be subject to fewer or lesser Late Fees in the event of late payment.

 

4. Delinquency and Default

If you fail to make any payment when due in the manner required by this Agreement, you will be delinquent. If you are delinquent, have filed or have instituted against you bankruptcy or insolvency proceedings or are in breach any other material term of this Agreement, we may, 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. If you fail to make a payment required under this Agreement, we reserve the right to limit, restrict, suspend or terminate your access to your Afterpay account.

 

5. Approval and Cancellation

All applications for credit are subject to our approval.  We may, in our sole discretion, not approve your application, or cancel an approved application before the goods or services are delivered or supplied.  If we cancel your previously approved application:

 

(a) We will apply a full refund of any amounts you have paid (excluding any chargebacks or fees incurred in relation to your payment), and will cancel any future payments related to that order;

 

(b) The merchant providing the merchandise will not be obliged to deliver the goods (or provide any related services); and

 

(c) You will have no obligation to make any further payments to us, or continue any other ongoing relationship with us, with respect to your application.

 

6. Merchandise Refunds and Other Adjustments Subsequent to Disbursement of Funds

Processing refunds and any merchandise exchanges or modifications are subject to the discretion of the merchant to whom you directed us to disburse funds under this Agreement. If you decide to return goods acquired using funds we have disbursed under this Agreement and request a refund, or a return and refund are otherwise accepted or permitted by law, you will remain obligated to make all payments still outstanding under this Agreement when due. However, for any amounts that a merchant returns directly to us in connection with such returned or exchanged merchandise, we shall retain such amounts and reflect an equivalent credit to reduce your outstanding obligation to us under this Agreement or, where applicable, refund to you any amounts already paid. In the event of a partial refund, the credit will be applied against your last payment first.  If, for any reason, we are unable to apply a refund to the order to which it corresponds, we may in our discretion apply the refund to any method of payment you have on file with us.  You will remain obligated to make payments still outstanding when due.

 

7. Transfers or Assignments

We may transfer, assign or sell this Agreement, and any rights under this Agreement, to a third party without your consent. You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. You hereby waive demand, notice of non-payment, protest and all other notices or demands whatsoever, and hereby consent that without notice to and without releasing the liability of any party, the obligations evidenced by this Agreement may from time to time, in whole or part, be renewed, extended, modified, accelerated, compromised, settled, canceled or released by us.

 

8. Complaints and Disputes

If you have a complaint with us arising out of or related to this Agreement, you should contact us at [email protected] If you have a complaint arising out of the delivery or quality of the goods you have purchased, you should contact the merchant using the details posted on the merchant's website. If you wish to submit a general complaint to us, you should do so by contacting us using the details posted on the Afterpay website or available through your Afterpay account. 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 all complaints and disputes.

 

9. Arbitration Agreement

(a) To expedite resolution and to minimize the cost of any claims and disputes arising out of or relating to this Agreement (“Dispute(s)”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Afterpay account. Our address for such Notices is: Afterpay US Services, LLC, 600 California St, 11th Floor, San Francisco, CA 94108, Attention: Legal, or by email to [email protected] Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.

 

(b) IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, AFTER 30 DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ALL DISPUTES SHALL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THE ARBITRATOR SHALL ALSO DECIDE ANY ISSUES RELATING TO THE MAKING, VALIDITY, ENFORCEMENT, OR SCOPE OF THIS ARBITRATION AGREEMENT, ARBITRABILITY, DEFENSES TO ARBITRATION INCLUDING UNCONSCIONABILITY, OR THE VALIDITY OF THE JURY TRIAL, CLASS ACTION OR REPRESENTATIVE ACTION WAIVERS (COLLECTIVELY, “ARBITRABILITY” ISSUES). YOU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY. FURTHER, UNLESS YOU OPT OUT OF ARBITRATION, YOU ALSO AGREE TO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION.

 

(c)  The arbitration will be commenced and conducted in San Francisco County, California 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.

 

(d) The parties agree that the following Disputes are not subject to the above provisions concerning informal 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. Aforementioned Disputes shall be brought in San Francisco County, California unless the parties agree otherwise. In addition, either party may assert claims, if they qualify, in small claims court in any United States county where you live or work.

 

(e) You agree that this agreement to arbitrate may be enforced by us or our affiliates, subsidiaries, or parents, and each of their officers, directors, employees, and agents.  This arbitration agreement is made pursuant to a transaction involving interstate commerce. The Federal Arbitration Act (9 U.S.C. §§1-16) (the “FAA”) shall govern this agreement to arbitrate including all arbitrability issues. No state law respecting arbitrability issues shall govern this agreement to arbitrate. Subject to and without limiting the foregoing, federal law shall apply to all other issues that arise under federal law and applicable state law as set forth in Section 10 below shall apply to all other issues that arise under state law (without reference to a state’s choice of law rules).  YOU MAY OPT OUT OF ARBITRATION BY SENDING US WRITTEN NOTICE WITHIN 30 DAYS OF SIGNING THIS AGREEMENT STATING THAT YOU WISH TO “OPT OUT OF THE AGREEMENT TO ARBITRATE DISPUTES.” THE OPT-OUT NOTICE SHOULD BE SENT TO THE FOLLOWING ADDRESS: Afterpay US Services, LLC, 222 Kearny Street, Suite 600, San Francisco, CA 94108, Attention: Legal or by electronic mail at [email protected] and include (i) your Afterpay account identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration.  If you do not opt out, but any part or parts of your agreement to arbitrate are unenforceable then we and you agree that such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to participate in class, representative or to arbitrate injunctive relief claims is unenforceable then the agreement to arbitrate shall be of no force or effect.

 

(f) CALIFORNIA RESIDENTS IF YOU RESIDE IN CALIFORNIA AND YOU OPT-OUT OF ARBITRATION, WE AND YOU AGREE THAT ANY DISPUTES WILL BE RESOLVED IN THE SUPERIOR COURT FOR THE COUNTY OF SAN FRANCISCO BY JUDICIAL REFERENCE PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE (“CCP”), § 638(a).  YOU ACKNOWLEDGE AND AGREE THAT IN ANY SUCH JUDICIAL REFERENCE ACTION, ANY DISPUTE WILL BE HEARD BY A REFEREE AND NOT BY A SUPERIOR COURT JUDGE AND JURY AND HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JUDGE AND JURY.  The Referee shall be appointed pursuant to CCP § 640 in the absence of agreement on the selection. Upon request, we will pay your portion of the fees and expenses of the Referee.

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF YOU RESIDE IN CALIFORNIA AND YOU DO NOT OPT-OUT OF ARBITRATION, YOU MAY SEEK PUBLIC INJUNCTIVE RELIEF IN ARBITRATION TO THE EXTENT PERMITTED BY APPLICABLE LAW.  Alternatively, if your Dispute involves a claim for public injunctive relief under California law, you may bring that claim in court.  If you bring such claim in court, you further agree that we may treat such a claim as a Dispute within the meaning of the arbitration agreement set forth in this Section 9, and that we would then have the right to demand arbitration, and if you refuse such demand, to move to enforce arbitration in accordance with the terms of the foregoing arbitration agreement pursuant to the FAA. If we lose our motion to compel arbitration, you agree to stay your claim in court for public injunctive relief pending (1) exhaustion of our right to appeal in court from the ruling against us, and (2) completion of arbitration of all other Disputes. If we win our motion to compel arbitration, your claims for injunctive relief will be decided in arbitration in accordance with the terms of the foregoing arbitration agreement, inclusive of the requirement that the arbitration may award injunctive relief only as is necessary to remedy your own alleged injury or to prevent future injury to you alone.

 

10. Applicable Law and Jurisdiction

Except as expressly provided in Section 9 above, this Agreement shall be governed by, and will be construed under, the laws of the state listed for the borrower above without regard to choice of law principles.

 

11. No Warranties; Limitation of Liability

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES TO YOU, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THE AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY. You agree that if any lawsuit or court proceeding is permitted under this Agreement, the aggregate liability of us, our subsidiaries, partners, and affiliates, and Afterpay US, Inc., its subsidiaries, partners, and affiliates, to you for all claims arising out of or related to this Agreement or your use or inability to use your Afterpay account will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount of any affected order(s) giving rise to such damages, or (b) the amount of five hundred U.S. dollars ($500.00). These limitations will apply even if the above stated remedy fails of its essential purpose.

 

12. Express Written Consent to Receive Short Message Service (“SMS”) Communications & Email Communications and Marketing

(a) Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to this Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS and text messages, calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You also expressly consent to the receipt of electronic communications in connection from the merchant, Afterpay or any third party, including TrueAccord Corp., that is engaged by Afterpay to collect any amount owed under this Agreement.

 

(b) You consent to receive SMS and text messages, calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your application, this Agreement and/or your account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number.

 

(c) By signing this Agreement, you are providing express written consent to receive SMS and text messages to each telephone number provided by you to us regarding this Agreement and your Afterpay account 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.

 

(d) If you wish to withdraw your consent to have communications provided via SMS, you may opt-out of receiving SMS from us at any time by emailing us at [email protected] Upon receipt of your message, we will process the request and it will be effective only after we have a reasonable period of time to process your request. If you withdraw consent, you may be prevented from using certain features of your Afterpay account.

 

(e) You agree that we may send you marketing communications to the email address you have provided including but not limited to targeted offers, introduction of new features, or other special announcements. You may opt out of these marketing communications at any time by using the “unsubscribe” link within a marketing email.

 

 

13. Miscellaneous

This Agreement is effective until all amounts due under the Agreement are paid in full or otherwise cancelled or refunded. 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. This Agreement, including all documents 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.

 

14. Electronic Transactions

THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES PREVIOUSLY PROVIDED.

 

15. State Specific Disclosures

 

For California customers:

This agreement is made pursuant to a California Finance Lenders Law license, #60DBO-99995. FOR INFORMATION CONTACT THE DEPARTMENT OF BUSINESS OVERSIGHT, STATE OF CALIFORNIA. As required by California law, Borrower is hereby notified that a negative credit report reflecting on Borrower’s credit record may be submitted to a credit reporting agency if Borrower fails to fulfill the terms of Borrower’s credit obligations. A married applicant may apply for a separate account. If Originator takes any adverse action as defined by § 1785.3 of the California Civil Code and the adverse action is based, in whole or in part, on any information contained in a consumer credit report, Borrower has the right to obtain within 60 days a free copy of Borrower’s consumer credit report from the consumer reporting agency who furnished the consumer credit report and from any other consumer credit reporting agency that complies and maintains files on consumers on a nationwide basis. Please note that for California consumers, other than a down payment, the first payment due hereunder will not be due for a minimum of 15 days after your purchase.

 

For Maryland customers:

This loan is made pursuant to the Credit Grantor Closed-end Credit Provisions of Title 12, Subtitle 1 of the Maryland Commercial Law Article (Md. Code Ann., Com. Law § 12-1001 et seq.).

 

For North Dakota customers:

NOTICE: MONEY BROKERS ARE LICENSED AND REGULATED BY THE DEPARTMENT OF FINANCIAL INSTITUTIONS, 2000 SCHAFER STREET, SUITE G, BISMARCK, NORTH DAKOTA 58501-1204. THE DEPARTMENT OF FINANCIAL INSTITUTIONS HAS NOT PASSED ON THE MERITS OF THE CONTRACT AND LICENSING DOES NOT CONSTITUTE AN APPROVAL OF THE TERMS OR OF THE BROKER'S ABILITY TO ARRANGE ANY LOAN. COMPLAINTS REGARDING THE SERVICES OF MONEY BROKERS SHOULD BE DIRECTED TO THE DEPARTMENT OF FINANCIAL INSTITUTIONS.

 

For Oklahoma customers:

You should refer to the relevant sections of this Agreement for information about nonpayment, default, the right to accelerate the maturity of this Agreement, prepayment and penalties.

 

For South Dakota customers:

If there are any improprieties in the making of this loan or in any loan practices, please refer to the South Dakota Division of Banking: South Dakota Division of Banking 1601 N. Harrison Ave, Suite 1, Pierre, South Dakota 57501; (605) 773-3421.

NOTE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

 

Last updated September 2020