Copyright 2024
The following document applies to Bunker Payment
s transaction platform (www.bunkerpayments.com/) (“The Platform”). The Platform is owned and operated by Bunker Payments, LLC (“Bunker Payments”) a Private Limited Company incorporated in Pennsylvania. Bunker Payments grants you a non-exclusive license to access the Platform and use the Services (defined below) subject to these terms and conditions (“Terms”).
In these Terms, “we”, “us” and “our” refer to Bunker Payments and references to “you” and “your” is to you, the user of the Platform and our customer (“Customer”). By accessing and using the Platform and Services you agree to be bound by these Terms. If you do not agree with these Terms, you must immediately stop using the Platform. You agree that we may change, update or otherwise amend the Platform, the Services and these Terms at our absolute discretion.
“Bunker Payment’s Account”: The registered profile of a Customer. “The Bunker Payments Hold” refers to Bunker Payment’s Stripe Platform Account, which is the client monies account with Stripe, which monies are transferred to via Bunker Payments during the process of a transaction. The Bunker Payments Hold is a safeguarded Hold Account. This Hold Account is statutorily protected so that the funds are held safely for Customers even in the event of our insolvency.
“Account”: (i) a payment account or payment instrument of a Buyer held with or issued by a third-party payment service provider (e.g. Buyer’s bank account or credit/debit card) from which funds are transferred to the Bunker Payments Hold; (ii) a payment account of a Seller held with or issued by a third-party payment service provider (e.g. Seller’s bank account or credit/debit card account) to which funds are transferred from the Bunker Payments Hold on completion of a Transaction.
“Business Day”: Monday through Friday between the hours of 9:00 a.m. and 5:00 p.m. (EST), which are not public holidays in the United States.
“Payment”: The transfer of Funds by Bunker Payments from the Buyer to the Seller to satisfy the payment of the relevant Transaction.
“Funds”: The funds transferred to the Bunker Payments Hold under a specific Transaction ID pursuant to these Terms and for the purpose of effecting the payment of the Transaction between Buyer and Seller.
“Transaction ID”: The unique identifier associated to a particular Payment Transaction identifying the funds transferred to the Bunker Payments Hold on behalf of a specific Buyer and Seller.
“Prohibited Transactions”: Customers may not use the Platform 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 or pornographic 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; sale of alcohol to consumers; gambling and sale of electronic currencies.
“Security Details”: The personal username or password associated to your Bunker Payments Account.
“Seller”: Has the meaning as set out herein.
“Services”: The transaction management and escrow-like services provided in relation to the Bunker Payments Hold and through the Platform.
“Buyer”: Has the meaning as set out herein.
“Writing”: Includes emails. When we use the words “writing” or “written” in these terms, this includes emails.
“Transaction”: The sale of goods or services by the Seller to the Buyer.
You accept and acknowledge the following conditions to access and use of the Platform and any Services:
You are over the age of 18;
Located in the United States;
You only use the Platform and Services for lawful purposes and not for Prohibited Transactions; and you represent that you have the capacity to form a binding contract in your jurisdiction;
You have the authority to bind any business on behalf of which you use our Platform;
You register a Bunker Payments Account;
You have the necessary equipment and access to the internet;
You must provide us with accurate personal and contact information and not share your personal information with other Customers;
You will only represent yourself and will not create false aliases or impersonate any other person or entity (with or without their consent) in connection with the Platform;
You are not breaking any local, state, national or international law in your relevant jurisdiction by accessing or using this Platform or the Services.
You accept and acknowledge the following conditions to access and use of the Platform and any Services:
To access the services, you will need to register a Bunker Payments Account by providing the information requested on the Platform (including full name, email address and date of birth) and creating a password.
You consent to the use of this information to create your Bunker Payments Account in accordance with our Privacy Policy and acknowledge that we rely on the information provided by you during the registration process being true, accurate, current and complete.
You agree to provide all information and documents we need from time to time so we can verify your identity and/or your bank account and so we may comply with our legal obligations to combat financial crime, including money laundering and fraud. We may use third-party data services that specialize in customer due diligence services to verify your identity. You also authorize us to hold your information, including your browsing and activity history, so we may perform ongoing monitoring of the Services and your behaviors when using Bunker Payments to comply with our legal and regulatory obligations.
If we are unsuccessful in receiving satisfactory information for us to verify your identity at the point of registration, we reserve the right to refuse to register your Bunker Payments Account and prevent you from gaining access to the services. We may also have obligations to report such activity to governmental agencies and we do not require your consent to do so.
If you are provided with a username and password to access the Platform, it is your responsibility to keep your username and password secure (Security Details). You indemnify us for any loss or damage we suffer as a result of your fraudulent use of your Bunker Payments Account including you knowingly sharing your Security Details with a third party for the purposes of fraud. You must take all reasonable steps to avoid the loss, theft or misuse of the Security Details.
You warrant and represent that any information provided to us is accurate, complete and not misleading and remains so. You must notify us of any change to such information.
We may suspend your use of the Services if:
a. We have reasonable concerns about the security of the Bunker Payments Account;
b. We are unable to confirm your identity or there is a potential risk of financial crime as part of our ongoing monitoring process;
c. We suspect the Services are being used in a fraudulent or unauthorized manner, or
d. We need to deal with technical problems or make minor technical changes.
We will notify you of any such suspension in advance, or immediately after if this is not possible, unless we have detected a problem which is urgent or an emergency. We will provide you with the reasons for the suspension, unless to do so would compromise reasonable security measures or otherwise be unlawful. We will lift the suspension and, where appropriate, issue new Security Details free of charge as soon as practicable once the reasons for the suspension cease to exist.
We cannot be held liable for any delay to the Services if we require to make an urgent change or deal with an emergency that may affect the security of our Platform, although we will at all times comply with our regulatory obligations to complete a Payment Transaction.
We may change the Platform on regular intervals to reflect changes in relevant laws and regulatory requirements, to implement minor technical adjustments and improvements, for example to address a security threat or otherwise to enhance the Services we provide through the Platform. These changes should not affect your access to or use of the Platform or Services. If we make more significant changes to the Platform or the Services, we will use our reasonable endeavors to inform you by email or by posting information on our website and may make changes to these terms to reflect such changes.
Payment processing services for sellers on Payment Bunker are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a buyer or seller on Payment Bunker you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Payment Bunker enabling payment processing services through Stripe, you agree to provide Payment Bunker accurate and complete information about you and your business, and you authorize Payment Bunker to share it and transaction information related to your use of the payment processing services provided by Stripe.
If you use our services to accept payments in advance of an event, you agree and authorize us and our payment processor to withhold an equal amount of funds from your normal payment processing payout. We and our processor will hold these funds in a reserve, to cover any potential customer disputes or chargebacks, until the event has occurred. Upon request, and based on a review of your payment processing and chargeback history, we and our payment processor may release some or all of the funds to you at an earlier date.
Either party may start a Transaction. The Customer receiving the Payment Transaction shall be the Seller (“Seller”), the Customer making the Payment Transaction shall be the Buyer (“Buyer”). To initiate a Transaction, a Customer must log into their Payment Bunker Account, or, if the Customer does not have a Payment Bunker Account, register a Payment Bunker Account. Once you have logged into your Payment Bunker Account and you have confirmed the details of the Transaction (including the Transaction value, details of the transaction and the contact details of the counterparty to that Transaction (“Counterparty”), a unique alphanumeric code will be generated that you can then send to the counterparty so that they can join the transaction. In order to join a transaction, the Counterparty shall be required to log into their Payment Bunker Account or, if the Customer does not have a Payment Bunker Account, register a Payment Bunker Account. Once all the details have been confirmed as correct, the Buyer transfers the funds, including the Payment Bunker fee, to the Payment Bunker Hold. The Funds will be debited from the Buyer’s Account and transferred to the Payment Bunker Hold, identifiable by the Transaction ID. Once the Buyer has authorized the Payment Transaction, it cannot revoke that consent and the Funds will not be released until the transaction has been completed. Both parties will always be able to check the progress of the transaction by clicking on the relevant transaction in the “My Transactions section”. Once the item has arrived and the Buyer is happy not to complain within the 24-hour time limit, the funds will be automatically released from the Payment Bunker Hold. No interest will accumulate on the funds while they are in the Payment Bunker Hold, as the account is managed by Stripe. However, a Maintenance Fee may be charged for any unclaimed Funds. We do not require, but strongly recommend that the Seller keeps records of any Transaction in case of a Transaction dispute (such as photographs to act as proof of delivery or completion of services). The Funds remain in the Payment Bunker Hold on behalf of the Buyer from the receipt of the Funds until the transaction is completed. Payment Bunker reserves the right to deem a transaction complete or still in progress whenever necessary. Upon the completion of a transaction, the Payment is automatically executed. Once the Payment is executed the Funds remain in the Payment Bunker Hold on behalf of the Seller. The funds are transferred automatically to the Seller’s Account, subject to delays depending on the need for and the results of anti-money laundering, counter terrorist financing or anti-fraud checks. You will get an indication of the anticipated time for the completion of the Transaction by checking the relevant transaction status. We will endeavor to notify you of any delays, and cannot be liable for any delays caused by any third-party service providers used as part of the transfer of the Funds to the Seller. We reserve the right to conduct customer due diligence checks on the Seller and/or the Buyer at any time. In the event that the Seller and/or the Buyer do not pass the checks, the Funds will not be transferred until all the checks have passed in accordance with applicable law. Depending on the result of the checks, the Funds may be transferred to a third party (including but not limited to a governmental asset recovery agency).
Payments, done through Stripe Connect, must be made in advance by credit card, debit card or any other payment method specified on the Platform. Surcharges may apply for certain payment methods, including charges from your own card issuer. We shall charge you fees as listed below. We reserve the right to change these at any time, by providing you notice pursuant to these Terms.
We retain 3% of the payout to the Vendor to cover Stripe fees. Buyer and Vendor are able to negotiate the payment of these fees and add the cost of the fees to the price of a transaction.
The Buyer Protection fee applies to all Payment Bunker transactions made through the platform. It is It is a flat fee and Payment Bunker reserves the right to change the fee at any time without prior notice.
The Buyer Protection fee is non-refundable.
A Stripe Chargeback fee of 18.45$ applies to all chargebacks and is deducted from the Seller’s next payout amount. The Stripe Chargeback fee is non-refundable, regardless of the outcome of the chargeback response.
Once the Funds have been deposited into the Payment Bunker Hold, if the Transaction has not been completed, or as otherwise agreed/set by the parties on the Platform, the Buyer may lodge a complaint via the Platform. The Seller shall be notified of such Buyer request and, should the refund be agreed by both parties, a refund Payment Transaction shall be initiated and the Funds shall be returned to the Buyer. We reserve the right to charge any administrative fees or other charges for a cancellation (Cancellation Fees). Both parties can mutually agree to cancel a transaction if the item hasn’t been posted yet, the Payment Bunker fee will be non-refundable however.
When you are a Buyer in a Transaction and you are an individual not engaged in conduct related to your trade, business, you are a consumer. A Seller shall be required to comply with the minimum requirements of the consumer regulations in the Seller’s own jurisdiction in respect of cancellations, refunds and returns.
Payment Bunker does not provide a currency conversion service and any conversion service will be provided by your third-party payment service provider or Stripe when transferring funds to and from your Account.
For each Transaction, you will be able to access all the following information in your Payment Bunker Account, as available and applicable:
a. The unique alphanumeric code for any transaction that has started and information on the other party to the Transaction including a brief description of the item in question and the delivery service used if applicable;
b. The status of the Transaction;
c. The total amount, and the currency of, the Funds standing to the credit of the Payment Bunker Hold relating to the Transaction in question;
d. The Fees, Maintenance Fees and other charges for the Payment Transaction and, where applicable, a breakdown of these payable by you;
e. The date of receipt of the payment order.
To the extent permitted by law, we are not liable to you, except;
a. As a direct consequence of our fraud;
b. For death or personal injury caused by us as a result of our negligence (or any other act or omission caused by our negligence that cannot be excluded by law).
Subject to the rest of this paragraph 13 we are not liable for:
c. Any loss of profit, business, contracts, revenue or anticipated savings;
d. Any special, indirect or consequential damages.
Except where you have acted fraudulently and subject to notification under this paragraph 14 you will not be liable for any losses incurred in respect of an unauthorized Payment. We will assume that all Payments are authorized by you unless you notify us otherwise. If you believe you did not authorize a particular Payment or that a Payment was incorrectly carried out, in order to get a refund, you must contact us as soon as possible, and in any case, no later than 13 months after the amount of the Payment Transaction has been deducted from the Account. We will immediately (and no later than close of business on the day the refund was requested) refund the amount of any unauthorized Payment Transaction and any associated fees payable under the Terms subject to the rest of this paragraph. If we are liable for an incorrectly executed Payments, we will refund without undue delay the amount of the Payment and any associated fees payable under the Terms subject to the rest of this paragraph 14. If the refund request is received on a non-Business Day or after 4:30 pm on a Business Day, we will make the refund at the beginning of the next Business Day. We may require you to complete a dispute declaration form. We may conduct an investigation either before or after any refund has been made. We will let you know as soon as possible the outcome of any such investigation. If you are a consumer or a micro-enterprise, we will only conduct an investigation after we have refunded you unless we have prima facie evidence that we should not be making the refund.
If you are a Seller, you are liable for all claims, expenses, fines and liability we incur arising out of:
a. A chargeback, refund, over-payment, payment error, or other invalid payment you cause (collectively Invalidated Payment);
b. Any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf;
Any losses resulting from your failure to comply with the terms of this Agreement.
In the event of an Invalidated Payment or other liability, we may deduct from the Funds the amounts due to us under these Terms prior to any refund.
Users payout details must be up to date at all times if they intend to transact on our platform as a seller.
In the case where payout details are not up to date, funds may not be released to a users bank account or debit card (Debit Cards only for the USA). In the event that payout details are not provided 90 days from the point of completing a transaction, we may be forced to remove this balance from your account, as requested by our regulators, and you will be unable to withdraw these funds.
You can contact Payment Bunker via the contact us pages on the Platform. Alternatively, you can contact Payment Bunker by email support@paymentbunker.com. Payment Bunker will contact you by using your email address. All communications with respect to the Services will be in English. Notices regarding changes to these Terms or the termination of these Terms will be made in writing including by sending you an email or a PDF document.
You may terminate these Terms at any time by contacting us. Notwithstanding the termination, any ongoing Transactions will continue in accordance with these Terms until completed unless the parties agree otherwise. We may terminate these Terms, your right to access the Platform and Services, for any reason and at any time by giving you two months’ notice in writing. Upon termination of these Terms, and provided that these Funds are not held in relation to a Dispute or otherwise required by law, we shall repay the Funds to the party who is a Buyer in a Transaction. The termination of these Terms does not affect the parties’ rights in respect of periods before the termination of these Terms.
Cooling-off – If you are a consumer:
You hereby request immediate performance of these Terms for the provision of the Services and acknowledge that you will lose your statutory right of withdrawal from these Terms once the initial service is fully performed. Nevertheless, you retain your right to terminate these Terms pursuant to the rest of this paragraph.
If you are not satisfied with the Services, tell us first by contacting us on support@paymentbunker.com so we can try to resolve the issue. We will promptly send you a complaint acknowledgement and a copy of our Complaints Procedure. You may also request a copy of our Complaints Procedure at any time. Details of our Complaints Procedure can also be found on the Platform in the FAQ’s section. You agree to cooperate with us and provide the necessary information for us to investigate and resolve the complaint as quickly as possible. We will investigate all complaints fairly and will attempt to resolve any complaint as promptly as possible in accordance with our regulatory obligations. You may receive a summary resolution from us where we are able to provide an agreed resolution within 3 Business Days from the complaint, or in all other cases you will receive our final response within 8 weeks from receipt of the complaint.
You accept our Privacy Policy and Cookie Policy and agree that you will not do anything that shall compromise our compliance with the Privacy Policy and Cookie Policy nor do anything contrary to the Privacy Policy or Cookie Policy insofar as your use of the Website is concerned. We may amend the Privacy Policy and Cookie Policy without notice and at our absolute discretion, and by continuing to use the Website you accept such changes.
We are not liable for any breach of the Terms where the breach is due to abnormal and unforeseeable circumstances beyond our control, the consequences of which would have been unavoidable despite all effects to the contrary, nor are we liable where the breach is due to our legal obligations.
PAYMENT BUNKER 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 BUNKER MAKES NO WARRANTY THAT ITS SECURITY CANNOT BE BREACHED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, PAYMENT BUNKER ON BEHALF OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF ANY KIND AND SHALL NOT 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 AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF ALL THIRD PARTIES, OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES ARISING OUT OR IN CONNECTION WITH THE USE OF THE SITE(S) OR ANY WEBSITE WITH WHICH THEY ARE LINKED AND YOU SO AGREE TO SUCH EXCLUSION. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR ANY OTHER LEGAL, CONTRACTUAL, STATUTORY, REGULATORY OR EQUITABLE BASIS TO THE GREATEST EXTENT AUTHORIZED BY LAW. FOR THE AVOIDANCE OF DOUBT, PAYMENT BUNKER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, COSTS, OR EXPENSES INCURRED, OR SUFFERED BY A PARTY AS A RESULT OF THE SELLER, BUYER, BROKER OR AN AUTHORISED USER’S ACCESS OR USE OF OUR SERVICES OR INABILITY TO ACCESS OR USE OUR SERVICE, EXCEPT TO THE EXTENT CAUSED BY OUR GROSS NEGLIGENCE OR WILFUL MISCONDUCT. PAYMENT BUNKER IS NOT LIABLE IN ANY WAY FOR ACTING IN ACCORDANCE WITH OR RELYING ON ANY INSTRUCTION, NOTICE OR DEMAND OR DOCUMENT FROM A PARTY OR PARTY’S AGENT ON THE PARTY’S BEHALF. PAYMENT BUNKER IS NOT LIABLE FOR ANY MATTER RELATING TO A DISPUTE BETWEEN THE SELLER AND BUYER IN RESPECT TO AN AGREEMENT BETWEEN THE SELLER AND THE BUYER. EACH OF BUYER, SELLER AND BROKER CONSENT TO THESE LIMITATIONS OF LIABILITY.
Payment Bunker may suspend or terminate Your use of the Site or Escrow Services at any time, without notice, for any reason, in Payment Bunker’s sole discretion. Payment Bunker will attempt to provide You with prior notice of the suspension or termination of your Account or the Escrow Services by sending You an e-mail, but Payment Bunker is not obligated to do so, and may not do so where there is a risk to the security, privacy or integrity of the Escrow Services. You shall remain liable for all Escrow Transactions You initiate through the Site or Escrow Services prior to such termination, and the performance of Your obligations, including but not limited to, the delivery of the Merchandise or Seller Services and the payment of all amounts You owe prior to termination or discontinuation of Your use of the Escrow Services. You agree to pay all costs and expenses (including all reasonable attorneys’ fees) that Payment Bunker may incur in order to (a) collect any amounts You owe under the Payment Bunker Terms of Service or (b) to initiate an arbitration or judicial proceeding to resolve a dispute between Buyer and Seller, as set forth in these Terms.
a. If a dispute, claim, question, disagreement, or breach (collectively, “Disputes”) occurs between the Underlying Parties concerning the Escrow Transaction, or any aspect of the Escrow Services, the Underlying Parties shall promptly notify Payment Bunker in writing and use their best efforts during the Negotiation Period to resolve the Dispute. If they do so, they shall promptly notify Payment Bunker by joint instruction of the resolution terms. If they are unable to do so, they shall submit the matter to Arbitration on or before the Arbitration Commencement Period ends and promptly email notice of commencement to Payment Bunker. Before Buyer initiates Arbitration, Buyer must return the Merchandise to Seller.
b. If any Dispute occurs between an Underlying Party and Payment Bunker or concerning the Escrow Services, the Parties agree to submit to binding Arbitration in accordance with this Section. An Underlying Party with such Dispute must promptly notify Payment Bunker of the Dispute in writing. The Underlying Party and Payment Bunker will use their best efforts during the Negotiation Period to resolve the Dispute. If the Parties are unable to resolve the Dispute during the Negotiation Period, they shall submit the matter to Arbitration on or before the Arbitration Commencement Period ends in accordance with this Section.
YOU AGREE AND ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights with respect to Payment Bunker to the maximum extent permitted by Applicable Law. You agree to resolve any Dispute between you and Payment Bunker EXCLUSIVELY THROUGH BINDING ARBITRATION as set forth in this Section. Your rights with respect to any Dispute with Payment Bunker will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY. You are entitled to a fair hearing, but the Arbitration procedures may be simpler and more limited than rules applicable in a court. You understand and agree that any final decision of an Arbitrator with respect to Arbitration between you and Payment Bunker is as enforceable as any court order.
Any Disputes brought by You must be brought exclusively in Your own capacity and not as a plaintiff or class member in any purported class or representative proceeding. Additionally, the Arbitrator may not consolidate more than one person’s Disputes against Payment Bunker and may not otherwise preside over any form of a representative or class proceeding or award class-wide relief against Payment Bunker.
c. If Payment Bunker has not received notice of Arbitration following the Arbitration Commencement Period, Payment Bunker may terminate the Escrow Transaction and refund the Escrowed Funds to Buyer, minus the Escrow Fees. Payment Bunker may (but has no obligation to) commence Arbitration, or to interplead the Escrowed Funds with a court of competent jurisdiction. If so, Payment Bunker may use the Escrowed Funds to pay the fees to initiate Arbitration or to file an action and serve process except to the extent restricted or prohibited by Applicable Law. The Underlying Party instituting Arbitration shall notify the other Parties by sending written notice of demand for arbitration. The Underlying Parties shall accept service of the notice of arbitration or a Complaint and summons in connection with a judicial action via email at the addresses previously provided to Payment Bunker by the Underlying Parties.
d. Arbitration may be initiated with the American Arbitration Association (“AAA”), Judicial and Mediation Services, Inc. (“JAMS”) or Net-ARB Inc. (“net-ARB”) (each an “Arbitration Provider”), at the discretion of the commencing Party. The Arbitration shall take place in San Francisco, California, unless the involved Parties all agree to a different venue. The Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. Except as modified by these Terms, and unless otherwise agreed upon by the parties in writing, the Arbitration will be governed by the Arbitration Provider’s published rules and procedures. In the event of a conflict between these Terms and one of the Arbitration Provider’s rules or procedures, these Terms shall control to the extent of such conflict.
e. Unless the involved Parties agree otherwise, Arbitration shall be conducted before a single neutral arbitrator who is a member of AAA, JAMS, or net-ARB, (“Arbitrator”) with substantial experience in resolving commercial contract disputes. The commencing Party shall provide the Arbitration Provider with a copy of this arbitration provision and the names, contact information, and contact persons associated with the Underlying Parties and Payment Bunker, with a copy to all other Parties (“Arbitration Request”). Payment Bunker shall not be a party to the Arbitration to resolve a Dispute between the Underlying Parties unless Payment Bunker voluntarily elects to participate. The Arbitration Request will request the Arbitration Provider to select an Arbitrator pursuant to the Arbitration Provider’s procedures. If the Arbitration Provider does not have such a procedure, the Arbitration Request will request the Arbitration Provider to identify three potential Arbitrators (“Arbitration Provider List”). No Underlying Party may request any specific Arbitrator be included on the Arbitration Provider List. Each Underlying Party may, within five (5) days after receipt of the proposed names, strike one name from the list. Thereafter, the Arbitration Provider shall appoint as Arbitrator a person whose name has not been struck and an alternate. If the Arbitration Provider does not timely appoint an Arbitrator and alternate, either Underlying Party may petition the San Francisco County Superior Court, San Francisco, California, for such appointment. Within ten (10) calendar days after the appointment, the Arbitrator shall schedule a planning hearing, which will be conducted by telephone and shall be held within the next ten (10) calendar days, to discuss scheduling, discovery, and any other issues in the Arbitrator’s discretion.
f. The Arbitrator shall decide all gateway issues of arbitrability including whether the Dispute is subject to Arbitration in whole or in part and whether a Party’s litigation conduct constitutes a waiver of the right to demand Arbitration.
g. The Arbitrator shall enter a default award if an Underlying Party fails to participate in the Arbitration.
h. Unless the Underlying Parties (and Payment Bunker if involved) agree otherwise as set forth herein, the Arbitration for transactions shall take place in San Francisco, California, at a date, time and location selected by the Arbitrator. The final hearing must be commenced within 120 calendar days after notice of the selection of the Arbitrator is served (by either the Arbitration Provider or the Superior Court, as the case may be). The parties must use commercially reasonable efforts to have the hearing concluded within 90 calendar days after it is commenced, although the parties agree an Arbitrator may, in its sole discretion, take a longer period of time to set the time for the hearing or make its determination or order. A decision shall be reasoned. Except where the Arbitrator determines to take a longer period of time, the parties shall use commercially reasonable efforts to have the decision rendered within 20 days after the conclusion of the final hearing.
i. Subject to the prevailing-party shifting award specified below, each Underlying Party shall advance a pro-rata share of the Arbitrator’s expenses and fees, and the other arbitration expenses incurred or approved by the Arbitrator. Payment Bunker will not be responsible for any portion of the Arbitration expenses and fees unless Payment Bunker is a party to a Dispute under paragraph (b) above. An Underlying Party that fails to pay its share shall not be allowed to participate in the Arbitration and shall be subject to an order of default and resultant award by the Arbitrator. If an Underlying Party fails to pay its share, the other Underlying Parties shall pay pro rata the remaining costs. The Arbitrator shall add such payment in the final award to return the Underlying Parties to their position had proper payment been made.
j. The Arbitrator shall award the prevailing Party his/her/its expenses and fees of Arbitration, reasonable attorneys’ fees, and witness fees in accordance with these Terms, the Federal Arbitration Act, and, as necessary, the applicable Arbitration Provider’s rules and procedures.
k. A failure to respond or otherwise comply with a demand for Arbitration or to participate in the Arbitration will result in forfeiture of all rights of the non-complying Underlying Party concerning the dispute, including rights to the Escrowed Funds or any property associated therewith, and may result in a default judgment against that Underlying Party.
l. An Arbitration award shall be final and binding upon the participating Parties to the Arbitration and judgment confirming the award may be entered in any court of competent jurisdiction. The Arbitrator shall serve a copy of the award on all Parties (including Payment Bunker even if not involved in Arbitration).
m. Except as required by Applicable Law, Payment Bunker will take no action to close the Escrow Transaction or otherwise dispose of the Escrowed Funds until receipt of: (i) a joint instruction signed by all the affected Underlying Parties; or (ii) an order of the Arbitrator or court of competent jurisdiction directing action by Payment Bunker. Payment Bunker shall have no responsibility to initiate and/or continue to update the Underlying Parties regarding status of the Escrow Transaction, Arbitration, or judicial proceeding. If required by Applicable Law or if instructed by the Arbitrator, provided that all fees required of the Underlying Parties under these Terms are paid in advance, Payment Bunker will place the Escrowed Funds into an interest-bearing account. The disposition of the interest earned to the Underlying Parties shall be decided concurrently with the resolution of the dispute. THE OBLIGATION OF PAYMENT BUNKER AND ITS AFFILIATES SHALL BE LIMITED TO THE HOLDING AND DISBURSEMENT OF THE ESCROW FUNDS UPON INSTRUCTIONS SIGNED BY ALL UNDERLYING PARTIES OR AN AWARD FROM THE ARBITRATOR AND/OR JUDGE. Notwithstanding any of the foregoing, Payment Bunker reserves the right at its sole discretion to interplead disputed funds related to any Escrow Transaction to a court.
n. Payment Bunker may, in its discretion, institute Arbitration or a judicial proceeding (including interpleading the Escrowed Funds with a court of competent jurisdiction) to resolve any Dispute in an Escrow Transaction.
a. The Underlying Parties shall indemnify, defend and hold harmless Payment Bunker, its Affiliates and the respective officers, directors, shareholders, employees and assigns of Payment Bunker and its Affiliates from, against and in respect of any and all third party tort claims, suits, actions, and proceedings (collectively, “Claims”) to the extent that such third-party Claims arise from the negligent acts, errors, or omissions of the Underlying Parties relating to the use of the Escrow Services or a breach of the Payment Bunker Terms of service, including: non-payment or insufficient payment of Escrow Fees or any other charge; any chargeback from a card organization; or reversal or nonpayment of any credit or debit entry. The foregoing also applies to all judgements, settlements, liabilities, damages, demands, taxes, charges, expenses and legal and other expenses (including without limitation reasonable legal fees and expenses of attorneys), arising out of such third-party Claims. The indemnification obligation shall be due from the Underlying Party(ies) causing the harm to Payment Bunker. If more than one Underlying Party owes an indemnification obligation, the obligation shall be joint and several. The foregoing indemnities shall survive the termination of these Terms.
b. You further agree to release, indemnify, and hold Payment Bunker, including its Affiliates, and our respective officers, directors, shareholders, employees and assigns harmless from and against all liability, claims, damages, actions or losses caused by or arising from Your conduct in connection with:
i. all losses or costs suffered or incurred by Ecrow.com, including Disputes.
ii. any failure by You to pay fees.
iii. any failed or cancelled Escrow Transaction including for the avoidance of doubt any chargebacks from a card organization or reversal or nonpayment of any credit or debit entry.
iv. any misrepresentation, breach of contract or failure of consideration in relation to Your dealings with a Party including for the avoidance of doubt, any dispute(s).
v. any failure by You to provide correct information to us.
vi. any failure by You to update Your personal or business contact information in accordance with these Terms.
vii. Any breach by You of Your obligations under or in connection with these Terms.
a. If Payment Bunker believes that the Escrow Transaction violates the Payment Bunker Terms of Service or may violate Applicable Law, then it may terminate the Escrow Transaction and, in Payment Bunker’s sole discretion, may seek relief in a judicial proceeding or take other actions it deems appropriate.
b. If any Dispute between the Underlying Parties is not resolved within a reasonable time, as determined by Payment Bunker, or a conflicting demand is made upon it, Payment Bunker may demand Arbitration or institute a judicial proceeding or take other actions it deems appropriate.
Questions – If you have any inquiries regarding these Terms, please consult our FAQ section. Should you not find a solution to your query, kindly reach out to us via email at support@paymentbunker.com in accordance with the laws of Pennsylvania.
Duration – The Terms constitute an open-ended framework agreement, consistent with the provisions of the Payment Services Regulations 2009 in Pennsylvania.
Assignment – Our ability to assign or otherwise transfer our rights under these Terms shall be subject to providing you with a written notice of at least two months. You may not assign or transfer your rights under these Terms without obtaining our prior written consent.
Changes – Any alterations to the Terms will be communicated to you through the Platform and via email, with a two-month notice. Unless you notify us to the contrary prior to the effective date of the change and continue using the Services, you will be deemed to have accepted the modification. If you do not agree with the change, the Terms will conclude at the end of the two-month notice. Alternatively, you have the option to terminate the Terms immediately and without incurring any charges before the expiration of the two-month notice. The latest version of the Terms will be accessible on the Platform at all times.
Severability – If any provision within these Terms is found to be unenforceable or invalid within a particular jurisdiction, it will have no impact on the validity or enforceability of the remaining provisions of these Terms or the provision’s validity in other jurisdictions. The parties will make good faith efforts to replace such an invalid or unenforceable provision with a valid and enforceable provision that aligns with the intention of these Terms to the best extent possible.
Electronic Acceptance – These Terms are integral to an e-commerce transaction, and both parties agree to their electronic acceptance. The agreement to these Terms is formed and established electronically.
Governing Law – These Terms, along with your interactions related to these Terms, will be governed by the laws of Pennsylvania. In the event that you are a consumer residing outside of Pennsylvania, the governing laws will be understood to encompass any consumer protection laws from your jurisdiction of residence (“Home Jurisdiction”) that offer greater consumer safeguards than what is available under Pennsylvania law.
Jurisdiction – Any disputes arising from or associated with the Terms will be exclusively subject to the jurisdiction of the courts in Pennsylvania. However, if you are a consumer located outside Pennsylvania, you have the option to bring legal proceedings in the courts of your Home Jurisdiction alongside those of Pennsylvania.
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