(Updated as of March 27, 2015)
PLEASE READ THIS AGREEMENT CAREFULLY
1. Acceptance of Terms
1.1 You acknowledge that OpenSourceLiving is performing the Payment Services or otherwise causing the Payment Services to be performed to the registered members of the OpenSourceLiving.Org Sites in support of OpenSourceLiving.Org’s online transaction platforms and it shall perform certain payment services to Users strictly in accordance with OpenSourceLiving.Org’s instructions.
1.2 You acknowledge that you have read this Agreement prior to your use of our Payment Services. Each time you use our Payment Services you confirm that you agree to be bound by the terms and conditions of this Agreement and any subsequent amendments or modifications as may be made from time to time.
1.3 We may amend this Agreement any time by posting an updated version at www.OpenSourceLiving.Org Sites. The updated version of this Agreement shall take effect immediately upon posting. If an updated version contains material changes, the Company will notify you of the changes by announcement on the OpenSourceLiving.Org Sites.
1.4 Some of the Payment Services may be supported and provided by our affiliates. The Company also delegates some or all of the Payment Services to third-party payment processors and by using their services you agree to their policies.
2. Payment Services
2.2 The Payment Services are available to guest members and registered members of the OpenSourceLiving.Org Sites (“Users”). A User who purchases or acquires any product or service in an Online Transaction is referred to also as a “Buyer”, and a User who sells or provides any product or service in an Online Transaction is also referred to as a “Seller”. If your subscription or membership of the OpenSourceLiving.Org Sites expires or is terminated for any reason, you are not eligible to use the Payment Services on OpenSourceLiving.Org Sites. In addition, OpenSourceLiving is not obliged to provide the Payment Services where the bank account designated by a Seller in an Online Transaction to receive the transaction price has not been verified and confirmed by OpenSourceLiving and our affiliates.
2.4 You agree that OpenSourceLiving shall have the sole and absolute discretion to remit funds subject to the terms of this Agreement.
3.1 Buyer of an Online Transaction shall pay the full transaction price under the Online Transaction in clear funds to the Seller by making payment of funds to the bank accounts or other accounts using the payment methods both designated by OpenSourceLiving.Org on the OpenSourceLiving.Org Sites. The funds so received will then be held in the account in the name of either OpenSourceLiving or one of our affiliates registered with a bank or another payment service provider for the purpose of receiving the funds in accordance with the agreement between the Seller and OpenSourceLiving.Org. The Seller agrees that the Buyer’s full payment of the transaction price under the Online Transaction constitutes final payment to the Seller and Buyer’s payment obligation under the Online Transaction is fully satisfied upon receipt of funds by OpenSourceLiving at its payment account described above. The payment must be made in US Dollar or any other currencies as supported by OpenSourceLiving from time to time.
3.2 Upon receipt of the Buyer’s payment, OpenSourceLiving shall promptly notify OpenSourceLiving.Org Sites of the details of the payment. OpenSourceLiving shall also monitor and keep safe custody of the received funds and shall not release the funds unless an event set forth in clause 3.3 below occurs.
3.3 OpenSourceLiving shall retain the funds received in connection with an Online Transaction as instructed by OpenSourceLiving.Org unless, as agreed between Seller and OpenSourceLiving.Org, any of the following events occurs:
(a) in case of the successful completion of the Online Transaction upon Buyer’s confirmation, all the funds will be remitted to Seller;
(b) in case of absence of the Buyer‘s confirmation of receipt of the goods within the time limit prescribed by Seller and as agreed by OpenSourceLiving.Org, all the funds will be remitted to Seller;
(c) in case of the cancellation of the Online Transaction, all the funds will be refunded to Buyer;
(d) in case of any settlement agreement reached by Buyer and Seller, the funds will be disposed in accordance with such settlement agreement;
(f) if we or OpenSourceLiving.Org or our affiliates receives any order, ruling, award or judgment from a competent court, arbitration tribunal or authority which directs us to release the funds, the funds will be disposed in accordance with such order, ruling, award or judgment.
OpenSourceLiving is not holding any funds on behalf of Buyer, or in any escrow or trust relationship. Seller has requested that the settlement of funds to Seller be delayed as provided in the clause 3.3 below.
3.4 You acknowledge that OpenSourceLiving.Org may also provide a buyer protection plan for certain Online Transactions. In case of Seller who has been offered to subscribe the buyer protection plan, upon entering into a separate agreement with OpenSourceLiving, Seller may be required to provide deposits using the methods as designated by OpenSourceLiving.Org on the OpenSourceLiving.Org Sites to secure Seller’s due performance of obligations under the relevant buyer protection plan. Seller agrees to permit and hereby authorize OpenSourceLiving.Org, which in turn instructs OpenSourceLiving to deduct, withhold and dispose any deposits provided in accordance with the terms under the relevant buyer protection plan. In case of Buyer, you acknowledge and agree that the protection afforded to you under a buyer protection plan applies to those Online Transactions falling within the scope of the relevant plan only and Payment Services described under clause 3.3 of this Agreement will not be applicable to you in case Seller subscribed to the buyer protection plan.
3.5 When releasing any funds, OpenSourceLiving shall have the right to deduct any financial charges or service fees due and payable to OpenSourceLiving.Org (if any) in such amount as instructed by OpenSourceLiving.Org pursuant to the agreement between Seller and OpenSourceLiving.Org.
3.6 Unclaimed funds will be held by OpenSourceLiving for a period of three years as instructed by OpenSourceLiving.Org, at which time, the Seller will be deemed to have waived any claim in respect of such funds or, if required by applicable escheat laws, OpenSourceLiving will remit the funds (less any fees) to the relevant competent authority.
3.7 You acknowledge and agree that you will not receive interest or other profits in relation to the Payment Services.
4. Users’ Responsibilities
4.2 You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for OpenSourceLiving’s provision of the Payment Services. If your failure to do so results in any delay in the provision of any Payment Services or cancellation of any Online Transaction, OpenSourceLiving and our affiliates shall not be liable for any loss or damages arising from such delay.
4.3 You represent and warrant that:
(a) you will use the Payment Services in good faith and in compliance with all applicable laws and regulations;
(b) the information and material you provide in connection with the use of the Payment Services is true, lawful and accurate, and is not false, misleading or deceptive;
(c) you will not use the Payment Services to defraud OpenSourceLiving, our affiliates or other members or users of the OpenSourceLiving.Org Sites or engage in other unlawful activities (including without limitation dealing in products or services prohibited by law);
(d) in case that you are a Seller of products, you have the legitimate right and authorization to sell, distribute or export the products using the Transaction Services and such products do not infringe any third party’s rights;
(e) in case that you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements; and
(f) in case that you are a Seller of services, you will provide the services ordered with reasonable care and skills.
4.4 If in OpenSourceLiving’s opinion, any User is not acting in good faith, abusing the Payment Services, or in breach of this Agreement, OpenSourceLiving shall have the right to request OpenSourceLiving.Org to cancel the Online Transaction.
4.5 You as the User shall be solely responsible for payment of any taxes, duties or other governmental levies or any financial charges that may be imposed on any products or services purchased or supplied through the Payment Services or otherwise arising from the Online Transaction.
4.6 You agree to indemnify OpenSourceLiving, OpenSourceLiving.Org and our affiliates and our employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Payment Services or from User’s breach of this Agreement. OpenSourceLiving, OpenSourceLiving.Org and our affiliates reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with OpenSourceLiving in asserting any available defenses.
5. Personal Data Privacy
6. Suspension or Breakdown of Systems
6.1 If you are unable to use the Payment Services as a result of improper operation of the systems due to any of the following reasons, you agree you will not hold OpenSourceLiving and our affiliates liable:
(a) system suspension which has been announced by OpenSourceLiving in advance on the OpenSourceLiving.Org Sites;
(b) failure in data transmission due to breakdown in the telecommunications equipment and systems;
(c) failure in system operations due to breakdown resulting from typhoon, earthquake, tsunami, flood, electricity blackout, war, terrorist attack, and other force majeure events which are beyond our reasonable control; or
(d) the Payment Services are interrupted or delayed due to hacking, breakdown in the telecommunications authority, OpenSourceLivingbsite upgrade, banks, and other reasons.
7. Disclaimer and Limitation of Liability
7.1 OpenSourceLiving will only be liable for the obligations expressly set forth in this Agreement.
7.2 You agree that all risks arising from the Online Transaction will be borne by you and your counterparty.
7.3 Users’ information is provided by Users themselves. OpenSourceLiving makes no representation or warranty with respect to the accuracy, truthfulness and completeness of the Users’ information. You will be solely responsible for all consequences resulting from your own judgment and decision to use or otherwise rely on such information.
7.4 OpenSourceLiving makes no warranty regarding the Payment Services or any products or services supplied by the Sellers under any Online Transaction, including but not limited to:
(a) the Payment Services will meet your requirements;
(b) the Payment Services will be uninterrupted, timely or error free; OR
(c) any products, information or material obtained by you in connection with the Payment Services will meet your requirements.
7.5 Any proposal or material that you may obtain from OpenSourceLiving or our staff or through the use of the Payment Services, whether in writing or oral, shall not constitute OpenSourceLiving’s warranty regarding the Payment Services.
7.6 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE FULL EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED ON THE “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASES. ANY AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.
7.7 TO THE FULL EXTENT PERMITTED BY LAW, OPENSOURCELIVING AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF DATA OR LOSS OF OTHER ECONOMIC INTERESTS, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE PAYMENT SERVICES.
7.8 THE AGGREGATE LIABILITY OF OPENSOURCELIVING AND OUR AFFILIATES ARISING FROM THE PAYMENT SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE TOTAL REMUNERATIONS THAT OPENSOURCELIVING MAY DERIVE FROM SUCH TRANSACTION.
7.9 By using the Payment Services, you acknowledge and agree that OpenSourceLiving is not a bank and the Payment Services are payment processing related services rather than banking services. OpenSourceLiving is not acting as a trustee, fiduciary or escrow with respect to User’s funds and it does not have control of, nor liability for, the products or services that are paid for with the Payment Services. OpenSourceLiving does not guarantee the identity of any User or ensure that a Buyer or a Seller will complete a transaction on OpenSourceLiving.Org Sites.
7.10 Some states do not allow the exclusion of implied warranties or the limitation or exclusion of liability for incidental or consequential damages, so the foregoing exclusions or limitations may not apply to you. You may also have other rights that vary from state to state.
7.11 If you have a dispute with other parties, you release us (and our affiliates and officers, directors, agents, and employees thereof) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you agree to waive California Civil Code Section 1542, which states, in part: “A general release does not extend to claims which a creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if not known by him or her must have materially affected his or her settlement with the debtor.”
8.1 This Agreement shall be governed by the laws of the United States of America without regard to conflict of law principles.
8.3 In case a Dispute arises between you and OpenSourceLiving.Org in any other circumstances, if the Dispute is not resolved between you and OpenSourceLiving.Org, you and OpenSourceLiving.Org agree that the Dispute shall be finally resolved by arbitration with a mutually agreed upon arbiter within the United States of America.
8.4 If any Dispute is submitted for arbitration, the arbitration shall be conducted in accordance with the rules of the United States of America in force at the time of applying for arbitration as amended by this clause. The arbitration panel shall consist of one single arbitrator. Unless the parties agree otherwise, the arbitration shall be conducted in English and in the United States of America. The arbitration shall be conducted by telephone, online and/or solely based on written submissions as specified by the party initiating the arbitration, provided that the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties. The arbitration award rendered by the arbiter shall be final and binding on all the relevant parties. The arbitration expenses shall be borne by the losing party unless otherwise determined in the award.
8.5 In any event, you may not make any claim against OpenSourceLiving or our affiliates under this Agreement after one year from the date of occurrence of the matter giving rise to the claim.
8.6 Notwithstanding the foregoing provisions, either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction prior to or during the arbitration.
9. General Provisions
9.1 This Agreement constitutes the entire agreement between you and OpenSourceLiving.Org with respect to and governs the use of the Payment Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
9.2 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall be enforced.
9.3 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
9.4 No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
9.5 Any failure by OpenSourceLiving to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
9.6 OpenSourceLiving.Org shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. OpenSourceLiving.Org may delegate certain of OpenSourceLiving rights and responsibilities under this Agreement to independent contractors or other third parties. User may not assign, in whole or part, this Agreement to any person or entity.
9.7 If there is any conflict between the English version and another language version of this Agreement, the English version shall prevail.