1. The Agreement
1.1 The Agreement governs your access to and use of the Refundid Platform and sets out the terms upon which you:
(a) may establish a Refund Account with Refundid. Please refer to clause 2 for further details;
(b) may use that Refund Account to apply to Refundid to receive Refund Amounts. Please refer to clause 3 for further details; and
(c) agree to pay Charges to Refundid and allow Refundid to take back Refund Amounts issued to you in certain circumstances where you fail to comply with the terms of the Agreement. Please refer to clause 3.6 and clauses 5 through 7 for further details.
1.2 BY CLICKING TO ACCEPT THESE TERMS, COMPLETING REGISTRATION PROCESS, BROWSING THE REFUNDID WEBSITE, USING THE REFUNDID PLATFORM, OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE OR REFUNDID PLATFORM (COLLECTIVELY, THE “SERVICES”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH REFUNDID, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE REFUNDID PLATFORM OR ANY OF THE SERVICES.
1.3 PLEASE BE AWARE THAT CLAUSE 15 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND REFUNDID. AMONG OTHER THINGS, CLAUSE 15 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. CLAUSE 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ CLAUSE 15 CAREFULLY.
1.4 UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
1.5 The Agreement commences on the date that you accept the terms herein in accordance with clause 1.2 above and continues until the Agreement is terminated in accordance with clause 13.
1.6 Unless otherwise defined in the Agreement, capitalized terms used herein shall have the meanings set forth in clause 17 below.
1.7 By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and/or push notifications. Refundid’s mobile messages service (the “Message Service”) allows users to receive SMS/MMS mobile messages by opting-in. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement. We do not charge for the Message Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. By enrolling in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the telephone number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include operational or promotional information, and may be transmitted using an automatic telephone dialing system (“ATDS”) or other automated systems for the selection or dialing of telephone numbers. Your consent to receive mobile messages via an ATDS or other automated system is not required (directly or indirectly) as a condition of purchasing any services. Message frequency varies. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you change your mobile phone number, you agree to opt-out of the Message Service first.
2. Establishing your Refund Account
2.1 By accepting the Agreement you agree to establish a Refund Account with Refundid.
2.2 You may only open one Refund Account with Refundid at any one time. To be eligible to open a Refund Account you must:
(a) be an individual who is at least 18 years old;
(b) be capable of entering into a legally binding contract;
(c) have a valid and verifiable email address and mobile telephone number from a State within the United States; and
(d) set up a Debit Card or Bank Account for use with your Refund Account.
2.3 By entering into the Agreement, you represent and warrant that (i) all details provided by you are true and accurate; (ii) you are not a person barred from using Services under the laws of the United States, your place of residence or any other applicable jurisdiction; and (iii) that you are eligible to open a Refund Account. You are responsible for all activities that occur under your Refund Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or Refundid has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Refundid has the right to suspend or terminate your Refund Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create a Refund Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create a Refund Account or use the Services if you have been previously removed by Refundid, or if you have been previously banned from any of the Services.
2.4 Your Refund Account cannot be used by or transferred to any person other than you.
3. Submission of your Product Refund Requests and the issuance of Refund Amounts
3.1 Subject to the terms herein and the terms of the applicable Product Returns Policy, and provided that all information provided by you to Refundid is accurate, Product Refund Requests initiated by you will be processed by Refundid on the Refundid Platform in accordance with the Agreement. As part of the Product Refund Request, you will need to provide details of the Product you are returning. A Product Refund Request will only be approved if:
(a) the requested amount is the applicable Refund Amount;
(b) you purchased the Product from a Participating Retailer;
(c) the email address you used for the relevant online purchase is registered on your Refund Account; and
(d) it meets any other requirements as specified by Refundid from time to time.
3.2 When you submit a Product Refund Request to Refundid (i.e. when you request a Refund Amount under or using the Refund Account) you agree:
(a) to return the applicable Products, at our direction, to the Participating Retailer in compliance with their Product Returns Policy; and
(b) that the amount requested will be limited to the Refund Amount for the relevant Products.
3.3 Refundid will issue the Refund Amount by way of push-to-debit to your Debit Card or RTP to your Bank Account after the Product Refund Request has been approved by Refundid. If you choose to purchase a shipping label from Refundid then the cost of the shipping label will be deducted from the amount paid to your Debit Card or Bank Account.
3.4 If you enter into the Agreement but choose not to seek a Refund Amount for a Product which you wish to return to a Participating Retailer, provided that you have not already submitted a Product Refund Request through the Refundid Platform, you are still able to return that Product to the Participating Retailer and seek a refund directly from the Participating Retailer in the usual way.
3.5 If you enter into the Agreement and do seek a Refund Amount for a Product which you wish to return to a Participating Retailer, then in such case so long as such request is approved and you are issued the Refund Amount, you acknowledge that you may no longer seek a refund directly from the Participating Retailer.
3.6 Simultaneous with your receipt of a Refund Amount, the Participating Retailer sells and assigns to Us its contractual rights associated with your Product return (which includes the right to only pay a refund to you for Products received in an acceptable condition in compliance with the Product Returns Policy and to take back any refund amount paid to you prior to receipt of Products if such Products are not received in an acceptable condition in compliance with the Product Returns Policy). Accordingly, in the event you don’t return the Product in an acceptable condition in compliance with the Product Return Policy (including where there is a Product Reject Decision) Refundid will have the right to a take back from you any Refund Amount issued to you. Applicable amounts will be taken in accordance with clause 6 below.
4. Your Access to the Refundid Platform
4.1 When Refundid establishes your Refund Account we will provide you with access to the Refundid Platform. Subject to the Agreement, Refundid grants you a limited license to access and use the Refundid Platform for your personal or internal business purposes. Unless subject to a separate license between you and Refundid, your right to use any and all Services is subject to the Agreement.
4.2 You must:
(a) keep your login details and password for the Refundid Platform secret and confidential;
(b) not share those details with any other person;
(c) not use or seek to use the Refundid Platform for illegal or fraudulent purposes or assist any other person to do so; and
(d) inform Refundid without undue delay upon becoming aware of the loss, theft, misappropriation or unauthorized use or disclosure of your log in or password details or any unauthorized use of your Refund Account.
4.3 You must comply with any guidelines we issue or notify to you concerning the use of the Refundid Platform.
4.4 The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other parts of the Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Refundid’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Refundid website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Refundid, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Service or Services terminates the licenses granted by Refundid pursuant to the Agreement.
4.5 Except with respect to Your Content, you agree that Refundid and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, methods of operation, moral rights, documentation, and other Refundid software). You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
4.6 Refundid’s name and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any Services are the trademarks of Refundid and may not be used without permission in connection with your, or any third-party, products or services. Third party trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.7 You agree that submission of any ideas, suggestions, documents, and/or proposals to Refundid through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Refundid has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Refundid a fully paid, royalty-free, perpetual, irrevocable, worldwide, and non-exclusive right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Refundid’s business.
5. Requirements applicable to the return of Products
5.1 When you make a Product Refund Request you must return the applicable Products to the relevant Participating Retailer via a tracked Delivery Service. To return a Product via a tracked Delivery Service, you may choose to either:
a) arrange for the return of the Product to the Participating Retailer via the Refundid Platform, in which case clause 5.2 will apply; or
b) if applicable, arrange for return of the Product independently of the Refundid Platform, in which case clause 5.3 will apply.
5.2 If you elect to arrange for a Delivery Service via the Refundid Platform, then:
a) you authorize Refundid to facilitate the provision of that Delivery Service to you;
b) you agree that Refundid will arrange for the supply of the Delivery Service as agent for the applicable provider of the Delivery Service, which may be:
(i) the Participating Retailer; or
(ii) a Delivery Service provider such as Australia Post, Sendle, etc (Delivery Service Provider).
c) You accept that, as Refundid is the agent of the Delivery Service Provider, Refundid will not be liable to you for any failure of the Delivery Service Provider to provide the Delivery Service or for any loss of the Product by the Delivery Service Provider. If you have any concerns or claims in connection with the supply of the Delivery Service you must contact the Delivery Service Provider.
d) the Delivery Service will include provision of a Return label and this will be provided to you via the Refundid Platform for you to print and use.
e) The Refundid Platform will indicate the cost of acquiring the Delivery Service. In some cases the Delivery Service may be offered for no charge. In some cases the fee may include an amount payable to Refundid for facilitating the delivery arrangements through the Refundid Platform. If a fee is payable it will be deducted from the amount paid to your Nominated Debit Card or Bank Account as described in clause 3.4.
f) you must download, print and attach the Return Label when you return the Product;
g) you are not required to separately record or submit a tracking number into the Refundid Platform as the Refundid Platform will automatically capture this information;
h) you must dispatch the Product using the Delivery Service within 7 days of you receiving the Refund Amount into your Nominated Debit Card or Bank Account; and
i) you must follow all the instructions and requirements of the applicable Delivery Service Provider in relation to us of the Delivery Service including as to packaging of the Product and pick up/drop off of the package.
5.3 If you make a Product Refund Request and you do not elect to purchase a Delivery Service via the Refundid Platform, you must arrange to return the Product independently. In this case:
a) you must arrange for tracked postage yourself and you must obtain and use the relevant Return Label issued to you by the relevant Delivery Service Provider that you have engaged;
b) you must input details of the tracking number into the Refundid Platform within 4 days of making the Product Refund Request. If you do not provide a tracking number:
(i) within 4 days of the date of the Product Refund Request, Refundid may charge you Charges under clause 8.1(c); and
(ii) within 7 days of the Product Refund Request, Refundid may then deduct the Refund Amount and any applicable Charges under clause 8.1(c) from your Nominated Debit Card or Bank Account;
c) you will be responsible for paying for all costs of postage and delivery, including the cost of obtaining the Return Label, unless the Participating Retailer agrees to reimburse you for those costs. Refundid is not responsible for and will not reimburse you for these costs unless expressly requested to do by the Participating Retailer; and
d) you must, within 7 days of you receiving the Refund Amount into your Nominated Debit Card or Bank Account, dispatch the Product back to the Participating Retailer who sold you the Product.
5.4 Refundid will use the tracking number associated with the Return Label that you purchased from Refundid or the tracking number you have inputted into the Refundid Platform to determine whether you have posted the Product.
5.5 If you do not return the Product back to the Participating Retailer who sold you the Product in accordance with clause 5.2 or 5.3 (as applicable), Refundid will have the right to take back the Refund Amount from you as described in clause 3.6, and in addition Refundid may charge you Charges under clause 7.1(c). Refundid may deduct the Refund Amount from your Debit Card or Bank Account as described in clause 6.
5.6 You acknowledge that, at our direction, the Participating Retailer will assess your request for the Refund Amount and the Products which you return to ensure compliance with the applicable Products Return Policy. The Participating Retailer may determine that your return is not in compliance with the Products Return Policy (a Refund Rejection Decision) if:
(a) the Product is not received by the Participating Retailer within 21 days of you submitting the Product Refund Request (for example, if lost in the post);
(b) the Participating Retailer considers the Product returned by you does not qualify for a refund under their Product Returns Policy (e.g., the Product is damaged, stained or incomplete);
(c) there is an inconsistency between the Participating Retailer’s sales records and the Product Refund Request; or
(d) another applicable reason to reject the return of the Product applies.
5.7 If you are not satisfied with any Refund Rejection Decision, you will need to contact the Participating Retailer directly and resolve the issue with the Participating Retailer. Refundid has directed the Participating Retailer to manage and resolve disputes on Refundid’s behalf as a service described in clause 16.8.
5.8 In the event of a Refund Rejection Decision for any Product which you have returned, you must contact the relevant retailer to discuss the return of the Product to you (if required by you) and payment of those costs. Refundid has directed the Participating Retailer to manage this process on Refundid’s behalf as a service described in clause 16.8. Refundid is not responsible for returning any rejected Product to you or for the costs of returning any rejected Product to you.
6. Actions which may be taken by Refundid following a Refund Rejection Decision or amounts received in error; applicability to BNPL terms.
6.1 In the event of a Refund Rejection Decision, you hereby acknowledge and agree that since you did not return the Product in compliance with the Products Return Policy, Refundid is entitled to take back the Refund Amount as described in clause 3.6, and Refundid may deduct:
(a) the Refund Amount; and
(b) any applicable Charges;
in each case from your Debit Card or Bank Account. In this circumstance it will be Your responsibility to claim on any transit insurance that may apply.
6.2 Refundid reserves the right to deduct from your Debit Card or Bank Account any amount you are paid by mistake.
6.3 Refundid reserves the right to deduct from your Debit Card or Bank Account any amount you are paid in error by a Participating Retailer (for example where the Participating Retailer provides a refund directly to you instead of using the Refundid Platform, or wrongly accepts a Product Return).
6.4 If you receive a Refund Amount in respect of a purchase made through a BNPL service, you are required to continue to pay the full BNPL installments in accordance with the BNPL terms. The Agreement does not vary the BNPL terms.
7. Charges payable to Refundid
7.1 You acknowledge and agree that Refundid may charge you, and you agree to pay, the following Charges if any of the following defaults occur:
(a) If your Product Refund Request is rejected because it was dishonest or lodged in bad faith, we may charge you $10;
(b) If you fail to follow the Participating Retailer’s Product Returns Policy and a Refund Rejection Decision is issued, we may charge you $5;
(c) If you do not lodge the tracking number for the returned Product on the Refundid Platform within 4 days from the date of the Product Refund Request we may charge you $5. If within 7 days from the date of the Product Refund Request the tracking number has not been provided, in addition to Refundid’s right to take back the Refund Amount (as described in clause 5.3), Refundid may charge you a $5 dishonor charge.
(d) If a Refund Rejection Decision occurs due to a genuine mistake by you, such as returning the incorrect item instead of the Product or you make a mistake in entering required details into the Refundid Platform, we may charge you $1.
7.2 The Charges payable for a default are calculated to take into account the extra costs imposed on Refundid as a result of the relevant default, including the costs of increased administration and additional financing costs. You agree that the amounts specified are not a penalty but constitute a genuine and reasonable pre- estimate of the loss and damage that Refundid will suffer if a default occurs.
7.3 Refundid may at its discretion waive any of the Charges or charge $0 if any Product Rejection Decision is the result of a mistake on behalf of Refundid or in exceptional circumstances.
7.4 Refundid will notify you when Charges have been deducted from your Debit Card or Bank Account and will provide a reason for deducting the Charge.
7.5 In addition to any Charges pursuant to Section 7.1, as consideration for access to and use of the Services (including, without limitation, use of the Refundid Platform and Refund Account for an easy to use refund procedure, access to easy return shipping label generation from a variety of carriers and exclusive discounts and promotions at our partner stores), you agree to pay Refundid a fee in the amount of $5.00 (or some other amount that will be specified to you) at the time of each Product Refund Request. Such fee will be due and payable upon acceptance of a Product Refund Request and Refundid may deduct this fee from the Refund Amount paid to your Debit Card or Bank Account.
8. Other provisions regarding payments
8.1 You are responsible for ensuring that you have sufficient funds on your Debit Card or in your Bank Account to cover all amounts which Refundid is entitled to deduct from you pursuant to the Agreement (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges). By entering into the Agreement and opening a Refund Account, you are providing continuing consent for Refundid to deduct all such amounts from your Debit Card or Bank Account until such time as your Refund Account has been closed.
8.2 If a direct debit from your Debit Card or Bank Account fails, you authorize Refundid to satisfy any monetary liability you owe to Refundid by deducting the applicable amounts from the Debit Card or Bank Account at a later time or date.
8.3 Refundid will contact you directly to arrange payment via different means if there are inadequate funds on your Debit Card or Bank Account for the amounts Refundid is entitled to under the Agreement (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges).
8.4 Refundid reserves the right to escalate any unpaid amounts to which it is entitled under the Agreement (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges) and may pursue all available legal remedies. This may increase the amount you owe Refundid.
9. Changes to the Charges
9.1 We may change or increase the Charges from time to time during the term of the Agreement in our sole discretion. We will give you at least 14 days’ notice of any increase or change by email and/or via the Refundid Platform. Any change or increase will only apply to any Product Refund Request which you request after the notice period has expired. If you do not agree to the changes or increases you may terminate the Agreement within the 14 day notice period by giving Refundid notice of termination; provided that you remain liable for any Charges already incurred prior to such termination.
10. Liability, Disclaimer, and Indemnity
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) IN NO EVENT SHALL REFUNDID, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, AND LICENSORS (EACH, A “REFUNDID PARTY” AND COLLECTIVELY, THE “REFUNDID PARTIES”) BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT DISPATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND (II) REFUNDID’S TOTAL AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT AND THE OPERATION OF THE REFUNDID PLATFORM WILL BE LIMITED TO THE TOTAL CHARGES WHICH YOU HAVE PAID TO REFUNDID IN THE FIRST 3 MONTHS OF THE TERM OF THE AGREEMENT.
10.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESSED OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, IN RELATION TO THE SUPPLY, NON-SUPPLY OR DELAY IN SUPPLYING THE REFUNDID PLATFORM AND/OR ANY SERVICES PROVIDED BY REFUNDID ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
10.3 In no event will Refundid be liable for, and you agree not to seek to hold Refundid Parties liable for, any act or omission of any third party, including but not limited to a Participating Retailer, a financial institution, any payment system, any third party service provider, any provider of telecommunications services, internet access or computer equipment or software, any payment or clearing house system or for any losses caused by circumstances beyond Refundid’s control including a force majeure event (as described in clause 14). THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.4 To the extent permitted by law, you agree to indemnify and hold the Refundid Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Service in violation of the Agreement; (c) your violation of any rights of another party; (d) your violation of any applicable laws, rules or regulations; or (e) any other act or omission. Refundid reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to fully cooperate with Refundid in asserting any available defenses. This provision does not require you to indemnify any of the Refundid Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this clause will survive any termination of your Refund Account, the Agreement and/or your access to the Services.
11. Sales Tax
11.1 All amounts stated to be payable by you under the Agreement are exclusive of sales tax. Sales tax will be added if and when applicable.
12. Responsibility for Content; Privacy and Data Protection
12.1 You acknowledge that all content and information and other materials accessible through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Refundid, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Services, including any profile or Refund Account information and, subject to clauses 12.2 and 12.3 below, Personal Information (“Your Content”). You grant Refundid a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other users. Refundid does not claim ownership of Your Content. However, when you post or publish Your Content on or in any Services, you represent that you own or have all necessary rights to post or publish Your Content on or in the Services.
13. Termination and suspension
13.1 You or Refundid may terminate the Agreement at any time by providing the other party with 7 days’ notice of termination.
13.2 Refundid may terminate the Agreement if any of the following apply:
(a) you breach the Agreement and fail to rectify that breach within 7 days’ notice from Refundid;
(b) a judgment, order or encumbrance is enforced, or becomes enforceable upon any of your property or you are declared bankrupt or insolvent;
(c) you have insufficient funds on your Debit Card or Bank Account to allow Refundid to deduct amounts to which it is entitled under the Agreement (including, without limitation, Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges); or
(d) Refundid suspects that your use or attempted use of the Refundid Platform is dishonest, fraudulent or is otherwise illegal; or
(e) if Refundid is directed or requested to do so by any police force or regulatory authority or Refundid is or becomes unable to lawfully comply with its obligations due to any law or regulatory requirement.
13.3 On termination of the Agreement under clause 133, Refundid retains its rights against you in respect of any past breach of the Agreement and any amounts to which Refundid is entitled under the Agreement (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges), in addition to any other rights, powers or remedies provided by law. A link with your Debit Card or Bank Account will be maintained by Refundid until all amounts owing by you have been paid (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges).
13.4 On termination of the Agreement (however arising) Refundid will suspend your Refund Account however you will remain responsible for paying to Refundid all amounts due hereunder (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges). Refundid may deduct such amounts from your Debit Card or Bank Account as described in the Agreement.
13.5 Refundid may at any time suspend or cancel your right to access the Refundid Platform, your Refund Account, and/or the Services, which will prevent you from submitting Product Refund Requests if:
(a) you breach the Agreement;
(b) Refundid, in its sole discretion, becomes entitled to terminate the Agreement; or
(c) one or more Participating Retailers issue multiple Refund Rejection Decisions in respect of Products which you were required to return.
14. Force Majeure
14.1 Refundid is not liable for any delay or failure to perform an obligation (other than to pay money) under the Agreement caused by an act of God, fire, war, insurrection or other armed conflict, riot, vandalism or sabotage, strike, lockout, ban, transport or port accident or congestion, pandemic, epidemic, quarantine of persons or goods, limitation of work or other industrial disturbance or any law, rule, regulation, order, requirement or restraint imposed by any government or governmental agency whether local, state, national or international.
14.2 The performance of Refundid’s obligations under the Agreement is suspended for the period of delay caused by a force majeure event to the extent performance is prevented by such event from the date on which notice is given by Refundid, and any such non-performance or delay in performance of the agreement will not be a breach of the Agreement.
15. ARBITRATION AGREEMENT. Please read this clause (the “Arbitration Agreement”) carefully. It is part of your contract with Refundid and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
15.1 Applicability of Arbitration Agreement. If you have a dispute with a Participating Retailer, you must file a dispute through direct contact with the Participating Retailer. Subject to the terms of this Arbitration Agreement, you and Refundid agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of these Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Refundid may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Refundid may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of these Agreement.
15.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Refundid. If that occurs, Refundid is committed to working with you to reach a reasonable resolution. You and Refundid agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Refundid therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Refundid that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] or regular mail to our offices. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this clause.
15.3 Waiver of Jury Trial. YOU AND REFUNDID HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Refundid are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the clause entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4 Waiver of Class and Other Non-Individualized Relief. YOU AND REFUNDID AGREE THAT, EXCEPT AS SPECIFIED IN CLAUSE 15.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under clause 15.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this clause, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Refundid agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This clause does not prevent you or Refundid from participating in a class-wide settlement of claims.
15.5 Rules and Forum. The Term of Use evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Refundid agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this clause of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Refundid otherwise agree, or the Batch Arbitration process discussed in clause 15.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Refundid agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under clause 15.9 is triggered, the AAA will appoint the arbitrator for each batch.
15.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the clause entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the clause entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such clause entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the clause entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the clause entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Refundid need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
15.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Refundid agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Refundid by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Refundid.
You and Refundid agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
15.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Refundid account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.11 Invalidity, Expiration. Except as provided in the clause entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Refundid as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
15.12 Modification. Notwithstanding any provision in these Agreement to the contrary, we agree that if Refundid makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Refundid, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or these Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to these Agreement) remain in full force and effect. Refundid will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Agreement.
16.1 The Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between you and Refundid relating to the Refundid Platform, Refund Account, and the Refund Amounts Refundid provides to you and supersedes and cancels any previous agreement, understanding and arrangement relating to the same, whether written or oral.
16.2 You agree that Refundid may update these Terms and may change, remove, or insert conditions governing the use of any feature or element of the Refundid Platform by giving 14 days’ prior notice to you. Such notice may be given on any Refundid website, the Refundid Platform, or otherwise by email to you. Any change will only apply to any Refund Amount which you request after the notice period has expired. If you do not agree to any changes you may terminate the Agreement within the 14 day notice period by giving Refundid notice of termination.
16.3 Any notice, approval, consent or other communication by a party under the Agreement (Notice) must be in writing and delivered by post/mail or email to a party at the address or email of that party provided in the Refundid Platform or as otherwise specified by a party by Notice.
16.4 The Agreement is governed by and is to be construed according to the laws of the State of New York, consistent with the Federal Arbitration Act, (without regard to conflict of laws principles).
16.5 If any part of the Agreement is, or becomes, void or unenforceable, that part is, or will be, severed from the Agreement so that all parts that are not, or do not become, void or unenforceable remain in full force and effect and are unaffected by that severance.
16.6 A failure to exercise or delay in exercising any right, power or privilege by any party will not operate as a waiver of that right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of that right, power or privilege, or the exercise of any right, power or privilege. A waiver of any rights of any party will not have any force or effect unless and until the same is executed by the party whose rights are waived.
16.7 Refundid may assign, novate or otherwise transfer its rights and obligations to another party by giving you notice in writing. You may not assign, novate or otherwise transfer your rights or obligations to any other party without Refundid’s prior written consent. Any transfer or attempted transfer in violation of the foregoing will be null and void.
16.8 These Terms provide for certain services to be performed or provided by Participating Retailers with respect to Product Refund Requests. The Participating Retailers are acting at our request in providing these services on our behalf as a matter of convenience to provide for a streamlined and simple return process and experience for customers.
17. Meaning of Terms used in the Agreement
In these terms and conditions:
Agreement means these Terms and any application which you submit to Refundid.
Bank Account means a bank account in your name which will be linked to your Refund Account and used for (i) the issue of Refund Amounts as described in clause 3.3 and (ii) payments of amounts due from you under the Agreement (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges).
BNPL means a Buy Now Pay Later service, such as Afterpay or Zip, that provides short-term financing that allows a consumer to make purchases and pay for them at a future date.
Charge means a charge made by Refundid under clause 7.2.
Claim means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.
Content and Your Content has the meaning provided by clause 12.1.
Debit Card means a debit card in your name which will be linked to your Refund Account and used for (i) the issue of Refund Amounts as described in clause 3.3 and (ii) payments of amounts due from you under the Agreement (including Refund Amounts which Refundid is entitled to take back from you as described in clause 3.6 and Charges).
Delivery Service means a mail, postage or courier delivery service.
Delivery Service Provider is defined in clause 5.2(a).
Feedback has the meaning provided by clause 4.7.
Participating Retailer means a vendor of goods who has agreed to participate in the Refundid Platform.
Personal Information has the meaning given to it in relevant laws applicable to Refundid’s provision of services under the Agreement.
Product means the item purchased by you from a Participating Retailer which is being returned by you, at our direction, to the Participating Retailer.
Product Refund Request means a request from you for a Refund Amount, lodged on the Refundid Platform.
Product Returns Policy means the published policy and guidelines set by the Participating Retailer for Product returns and refunds, as may be updated from time to time by the Participating Retailer.
Refund Account means your account with Refundid for managing Product Refund Requests and issuance of related Refund Amounts.
Refund Amount means an amount equal to the refund that a Participating Retailer would pay to you (under its respective Product Returns Policy) for Products which you purchased from such Participating Retailer and return in compliance with the Participating Retailer’s Products Returns Policy. Unless otherwise specified, if Refundid purchases a shipping label from a shipping carrier on your behalf, this amount will be included in the Refund Amount.
Refund Rejection Decision has the meaning provided by clause 5.5.
Refundid, We or Us means Refundid Pty Ltd (ABN 90 642 621 770).
Refundid Party or Refundid Parties has the meaning provided by clause 10.1.
Refundid Platform means the platform operated by Refundid designed to manage Product Refund Requests from and issuance of related Refund Amounts, and includes any related mobile application provided by Refundid.
Services has the meaning provided by clause 1.2.
Terms means these terms and conditions, as updated from time to time by Refundid.