Afterpay terms and conditions

1. Background

1.1. These Afterpay terms for Trade Me sellers ("Terms") are the terms and conditions on which Trade Me Limited ("Trade Me") offers to provide Trade Me sellers ("Sellers") access to the deferred payment services ("Service") of Afterpay NZ Limited ("Afterpay"). The Service is only available to Sellers for certain categories of items, as described in the Afterpay help page (as updated from time to time).

1.2. These Terms are between Trade Me and the Seller. The Terms form part of Trade Me's terms and conditions and by offering the Service on their listings, the Seller agrees to the Terms. The Terms are intended for the benefit of, and where relevant may be enforced by, both Trade Me and Afterpay (as permitted by section 4 of the Contracts (Privity) Act 1982).

1.3. The Seller understands and acknowledges that the Service allows Afterpay to facilitate a buyer's purchase by paying Trade Me the purchase price of the item (including shipping). Trade Me transfers these funds to the Seller (less the Transaction Fee) in accordance with these Terms. Separately, Afterpay's agreement with the buyer requires the buyer to repay Afterpay the purchase price in four fortnightly instalments. More information is available on Afterpay's website.

1.4. Trade Me will endeavour to make any change or amendment to these Terms in accordance with the process and timeframe outlined in clause 1.2 of Trade Me's terms and conditions. However, the Seller acknowledges and agrees that any changes to Afterpay's processes, terms or legal requirements may require Trade Me to make immediate changes to these Terms (with notice via Site Announcement).

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2. Using Afterpay

2.1 Subject to these Terms, Trade Me will provide Sellers with the option to accept payment via the Service when listing an item.

2.2. For any listing where the Seller opts to accept payment by the Service during the listing process, Trade Me may indicate that a transaction paid via the Service may be subject to Buyer Protection and will:

a. indicate on that listing that payment can be made by the Service; and
b. facilitate the option for buyers to pay for the item using the Service.

2.3. The Service may not be used to acquire a financial product, or a beneficial interest in a financial product.

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3. How funds are paid and held

3.1. Sellers acknowledge and understand that:

a. buyers who wish to pay via the Service must first be approved by Afterpay and accept Afterpay's terms; and
b. where a buyer pays the purchase price (including shipping) for a Seller's item via the Service, Afterpay will facilitate payment to Trade Me on behalf of the buyer.

3.2. Trade Me holds funds received from Afterpay in accordance with clause 3.1(b) on trust on behalf of the Seller until it is paid to the Seller's Nominated Bank Account (subject to Trade Me's ability under clauses 3.3, 3.5, 3.6 and 10 to take the actions contemplated by those clauses).

3.3. The Seller authorises Trade Me to deduct its Transaction Fee from funds held on trust and retain any interest earned on the funds held on trust.

3.4. Subject to clauses 3.3 and 3.5, Trade Me will pay the Seller's funds to the Seller's Nominated Bank Account as soon as reasonably practical, but in any case no later than three working days after it is received (unless the parties agree otherwise).

3.5. Despite clause 3.4, Trade Me may hold payments for longer periods at its reasonable discretion, such as to minimise fraud risk, where necessary due to circumstances beyond Trade Me's reasonable control, or to await the conclusion of a dispute.

3.6. If a buyer purchases an item on Trade Me, and the transaction is reversed in accordance with clause 10, the funds will be refunded back to Afterpay by Trade Me. In accordance with Afterpay's terms, Afterpay will refund any repayments made to it by a buyer. For example, if the buyer has paid Afterpay two instalments of $25 for a $100 item, Afterpay will refund $50 to the buyer following Afterpay's receipt of a Reversal.

3.7. The Seller's payments will be visible in the Seller's Pay Now / Afterpay account ledger (found in the Seller's My Trade Me page), where payments to the Seller can be viewed, before funds are transferred to the Seller's Nominated Bank Account. The Seller acknowledges that payments into the Seller's Pay Now / Afterpay account or the Seller's receipt of confirmation or approval of payment, are not a guarantee of payment into the Seller's verified Nominated Bank Account.

3.8. Trade Me's technical requirements mean that funds received by the Seller through a transaction made via the Service will be held in a separate Pay Now / Afterpay account. The Seller agrees and acknowledges that notwithstanding the visibility of the Seller's funds in a combined Pay Now / Afterpay account ledger, the Service is different to the Pay Now service, and the Seller's funds from transactions made via the Service are allocated separately.

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4. Charges and Fees

4.1. Unless agreed otherwise in writing with a Seller, Trade Me will charge the Seller the current fee described on Trade Me's fees page ("Transaction Fee") for every item the Seller sells via the Service. The Seller's funds, less the Transaction Fee, will be held in the Seller's Pay Now / Afterpay account (in accordance with clause 3 above). Trade Me may change the Transaction Fee at any time by giving not less than two weeks' notice.

4.2. The Seller acknowledges and agrees that the Transaction Fee is charged by Trade Me in consideration for Trade Me providing the Service to the Seller, including by facilitating money transfers between the Seller and Afterpay (on behalf of the buyer) and providing transaction information to the Seller. Trade Me pays a portion of the Transaction Fee to Afterpay to recognise Afterpay's role in facilitating the Service.

4.3. If a Chargeback or Reversal occurs as a result of an incorrect transaction (such as a technical error) Trade Me will refund the Transaction Fee. If a Chargeback or Reversal occurs for reasons other than an incorrect transaction Trade Me will not normally refund the Transaction Fee.

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5. Seller's Accounts with Trade Me

5.1. Sellers will not be able to list an item if their Pay Now / Afterpay account, Trade Me account, or Ping balance is in debt.

5.2. Sellers with a negative Pay Now / Afterpay account or any other debt to Trade Me, including a debt arising as a result of a Reversal or a Chargeback made in accordance with clause 10, may be referred to a debt collection agency. Costs of debt collection are the responsibility of the Seller and the Seller agrees to pay those costs, which will be added to the amount of the Seller's debt.

5.3. Trade Me may in its sole discretion restrict or suspend a Seller's Trade Me account or use of the Service, until all amounts owed to Trade Me are paid in full.

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6. Seller's bank account

6.1. The Seller must nominate a legitimate, New Zealand-domiciled bank account(s), or (only with Trade Me's written approval which may be granted or withheld at Trade Me's sole discretion) a foreign bank account (a "Nominated Bank Account").

6.2. Before allowing the Seller to use the Service or withdraw their funds, Trade Me may require the Seller to verify its control of, and access to, the Nominated Bank Account (in accordance with Trade Me's bank account verification process). Trade Me may require subsequent confirmation of this account if the Seller has not received a payment for three or more months.

6.3. To comply with clause 6.2, the Seller may be required to use Trade Me's existing process for account verification associated with Pay Now. For the avoidance of doubt, registering for Pay Now for this purpose will not mean the Seller has to offer Pay Now on the Seller's listings. If the Seller already uses Pay Now, Trade Me will use the same Nominated Bank Account for the Service.

6.4. If a Seller wishes to change their Nominated Bank Account, Trade Me may require the Seller to complete the bank account verification process for the new account. Trade Me will continue to make payments into the existing Nominated Bank Account until the new account is verified. The Seller must still send any items as required by clause 9.

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7. Fraud prevention measures

7.1. Afterpay and Trade Me employ fraud detection techniques designed to prevent fraud. Trade Me or Afterpay may sometimes hold or reverse payments or take other steps to protect Trade Me members.

7.2. A Seller using the Service must only deliver an item to a buyer after Trade Me has given the Seller confirmation that payment via the Service has been approved.

7.3. If Trade Me is made aware after funds have been transferred to the Seller that the buyer's use of the Service was not approved by Afterpay, or the transaction was otherwise fraudulently paid by the buyer, and the Seller has acted in accordance with Trade Me's instruction regarding that transaction, Trade Me will not pass the loss on to the Seller.

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8. Responsible use of the Service

8.1. While using the Service on the Website, the Seller will comply with any relevant laws and agrees not to:

a. provide any false, misleading or inaccurate information about Afterpay;
b. use any technology (device, software or hardware) to damage, intercept or interfere with the Service, or any software or technology of Afterpay or Trade Me;
c. conceal from, or otherwise fail to disclose to, any buyer, any accurate information of which Seller has become aware that is contrary to any prior information provided to a buyer in relation to a listing;
d. engage in any fraudulent or other unlawful conduct, or suspicious activity, in connection with the Service;
e. to do anything to prevent any repayment amounts owing to Afterpay in connection with the Service from being valid and enforceable against the relevant buyer; or
f. enter into, or seek to enter into, any special arrangement or condition with, or discriminate against, a buyer in relation to their use of the Service.

8.2. The Seller will ensure that:

a. when listing an item, the Seller has, or will have, title to the item clear of all encumbrances, liens and claims; and
b. the item, at the time it is delivered to the buyer, is as described in the Seller's listing.

8.3. To the extent permitted by law and without limiting any other rights of Trade Me under these Terms or Trade Me's standard terms and conditions, the Seller will comply with any reasonable directions given by Trade Me:

a. in relation to the advertisement and offer of Afterpay;
b. to remove any marketing, advertising or promotional materials relating to Afterpay from their listings which have not been authorised by Afterpay;
c. to immediately discontinue the use or display of any of Afterpay's intellectual property, or change the manner in which any Afterpay intellectual property is used or disclosed;
d. to remove any information about Afterpay or the Service which is false, misleading or deceptive, defamatory, or highly offensive; or
e. to remove or amend any listings (including any description of the Afterpay Gateway or the Service included in any listings) which are in breach of these Terms or Trade Me's terms and conditions or Trade Me's policies.

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9. Sellers' obligations for items

9.1. Subject to clause 7.2, the Seller must ship the item as quickly as reasonably possible (and in any case no later than within three working days of notification of payment).

9.2. If a buyer has chosen to have their item delivered, the Seller is responsible for delivering items to the buyer by the time agreed with the buyer or, if this is not agreed, within a reasonable time. Items are treated as delivered to the buyer only when delivered to the buyer's physical address (as notified to the Seller). A Seller's failure to deliver an item in accordance with this clause 9.2 may be treated as a "non-delivery" under the Buyer Protection Policy.

9.3. If a buyer's item has been damaged in transit then it is the Seller's responsibility to refund the buyer. The Seller may choose to recover this cost by applying for insurance (whether from the shipping company or otherwise). All refunds must be processed via the refund functionality described in clause 9.6(c).

9.4. In each listing, Sellers are responsible for bringing to the attention of buyers any defects, deterioration or imperfections of an item which are material ("material defects"). Items with undisclosed material defects, or which are not materially the same as described in a Seller's listing when received by the buyer, may be treated as "not as described" under the Buyer Protection policy.

9.5. A Seller must:

a. offer clear shipping options with specific pricing on all listings offering the Service; and
b. not add any surcharge or impose any cost on buyers for making payment using the Service.

9.6. Sellers acknowledge and understand that the Service allows a Seller to receive payment of an item's full purchase price, while the buyer has continuing repayment obligations to Afterpay in accordance with Afterpay's terms. Because of this, the Seller agrees:

a. not to accept payments or ongoing repayments for any item from a buyer on Afterpay's behalf;
b. if the Seller receives any Afterpay repayments from a buyer, the Seller must comply with Trade Me's directions regarding such funds so that Afterpay receives the benefit of the repayments owing; and
c. subject to clause 9.7, if the Seller intends to or is directed to make a refund to a buyer, including where the buyer has made a Buyer Protection application, the Seller will make the refund through the Seller's 'My Trade Me' page (and Afterpay will ensure that any repayments owing to the buyer are refunded).

9.7. If a Seller intends to or is directed to make a refund to a buyer and the transaction occurred more than 120 days earlier, the Seller may make the refund directly to the buyer.

9.8. Sellers agree to conduct themselves in good faith, respond to communications with Trade Me in the event of a dispute, and be bound by:

a. Trade Me's decision regarding a dispute report filed by a buyer claiming that the buyer is eligible for a refund under the Buyer Protection policy (Buyer Protection application), subject to clause 9.10; or
b. otherwise, the outcome of any dispute resolution process.

9.9. If a Seller is directed to refund a buyer under the Buyer Protection policy, the Seller will ensure that the refund is processed in accordance with clause 9.6(c) promptly after receiving the item from the buyer and at the latest, within three working days of receipt. If the Buyer Protection policy does not require the return of the item, such refund should be processed promptly and no later than three working days after Trade Me directs that the Seller make the refund.

9.10. If a Seller is dissatisfied with Trade Me's decision regarding a dispute the subject of a Buyer Protection application, the Seller may seek determination of its liability (as against the buyer in the dispute) by initiating proceedings in the Disputes Tribunal or a New Zealand court.

9.11. In no circumstances will a Seller ship items sold through the Trade Me marketplace outside New Zealand or Australia.

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10. Buyer Protection, Chargebacks and Reversals

10.1. Transactions made through the Service are subject to Trade Me's Buyer Protection policy. The Seller agrees that:

a. the Seller will attempt in good faith to resolve any dispute with a buyer concerning a transaction paid for via the Service;
b. if the parties are unable to resolve the dispute, and the buyer makes a Buyer Protection application to Trade Me, Trade Me may make a Reversal if Trade Me determines it appropriate under the Buyer Protection policy, and the Seller may have its Pay Now / Afterpay account debited, or be required to pay Trade Me any amount remaining, in accordance with this clause 10; and
c. the Seller will be liable for the costs of any return shipping if Trade Me determines (in accordance with clause 10.1(b) above) that the Seller is responsible for a dispute the subject of a Buyer Protection application.

10.2. The Seller agrees that if Trade Me determines (in accordance with clause 10.1(b) above) that the Seller is responsible for a dispute, and Trade Me has agreed to allow the buyer to return the item to Trade Me instead of to the Seller (as permitted by the Buyer Protection Policy) then, provided the Seller has paid to Trade Me any amount owing in accordance with this clause 10, Trade Me will use its reasonable endeavours to arrange the return of the item to the Seller, at the Seller's cost. If Trade Me has been unable to arrange the return of the item to the Seller within a period of 90 days (for example because the Seller is refusing to accept the item, the Seller is not making contact with Trade Me or the Seller has not paid to Trade Me any amount owing in accordance with this clause 10), then the Seller agrees that:

a. Trade Me is entitled to dispose of the item as it sees fit.
b. Trade Me may keep the proceeds of such disposal (if any);
c. Trade Me's disposal of the item shall not reduce or otherwise affect the Seller's obligation to pay to Trade Me any amount owing in accordance with this clause 10.

10.3. Reversals: If a member disputes a transaction, Trade Me may at its sole discretion investigate the transaction and if Trade Me determines it appropriate, Trade Me may reverse a transaction between a buyer and the Seller (a "Reversal").

10.4. Where Trade Me determines a Reversal is appropriate, Trade Me will reverse the disputed transaction and cause the amount originally paid to the Seller (the "Reversed Amount") at the time of purchase to be refunded to Afterpay by debiting the Seller's Pay Now / Afterpay account for the Reversed Amount. As described above in clause 3.6, Afterpay will refund any repayments previously made by the buyer in accordance with Afterpay's terms.

10.5. If Trade Me is unable for any reason to complete a Reversal, Trade Me may debit the Seller's Ping balance or Trade Me account for the Reversed Amount and make payment to Afterpay through any other means Trade Me determines appropriate in the circumstances.

10.6. Chargebacks: Banks and other credit/debit card issuers ("Issuers") generally offer a dispute process for credit card or debit card payments known as a chargeback process. Buyers who have purchased an item using the Service make repayments to Afterpay using a debit or credit card. Where an Issuer determines that a buyer's repayments in respect of transaction made via the Service should be refunded (a "Chargeback") Trade Me will normally give effect to the Chargeback by debiting the Seller's Pay Now / Afterpay account. The decision to debit the Seller's Pay Now / Afterpay account for a Chargeback is, however, at Trade Me's sole discretion. Where Trade Me gives effect to a Chargeback, the purchase price will be repaid to Afterpay and Afterpay will use the funds to refund any amounts paid by the buyer to Afterpay as repayments. If a buyer receives a Chargeback (via Afterpay), Trade Me will not allow the buyer to receive the benefit of Buyer Protection in respect of the same transaction.

10.7. Costs: If Trade Me gives effect to a Chargeback or makes a Reversal, the Seller agrees to indemnify Trade Me against any costs incurred as the result of the Chargeback or Reversal (including in relation to a buyer's successful Buyer Protection application). The Seller authorises Trade Me to debit the Seller's Pay Now / Afterpay account for the amount of any such costs. For clarity, if in respect of any Reversal or Chargeback Trade Me is unable to debit the Seller's Pay Now / Afterpay account or the Seller fails to pay any amount owing to Trade Me, this will create a debt between Trade Me and the Seller, and Trade Me may refer the matter to a debt collector in accordance with clause 5.2.

10.8. If an Issuer, Afterpay or Trade Me's acquiring bank (known as its "Acquirer") is investigating a Chargeback and requests information from Trade Me about the transaction, Trade Me may disclose such information to Afterpay, the Acquirer or the Issuer (via the Acquirer) for the purpose of determining the Chargeback. Any disclosure of personal information will be made in accordance with Trade Me's privacy policy.

10.9. The Seller agrees to do all things reasonably requested by Trade Me, Afterpay or any Issuer (including providing further evidence or additional information such as, without limitation, proof of postage) to facilitate investigation by Trade Me, Afterpay, Trade Me's Acquirer or an Issuer of a Chargeback, Reversal, or of any other buyer complaint or query.

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11. Transaction limits

11.1. Trade Me may set limits on the value or number of transactions that Sellers can make using the Service within a given period. These transaction limits may be changed by Trade Me at any time.

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12. Disclaimers

12.1. Sellers accept that:

a. Trade Me and Afterpay only facilitate the Service, and do not take any part in the sale itself including as an agent for either party.
b. Trade Me and/or Afterpay's fraud protection systems may from time to time block legitimate payments. In these cases, payment will need to be made by other means.
c. Trade Me and Afterpay make no warranty that the Service will meet the requirements of all prospective users, or that the Service (including any reports) will be uninterrupted, timely, secure or error free.
d. Trade Me and Afterpay bear no responsibility or liability for any misconduct or mistakes by members or other third parties who are involved in the transaction.

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13. Liability

13.1. Trade Me and Afterpay (and their related bodies corporate) are not liable for Afterpay declining any buyer's use of the Service. The Seller acknowledges and agrees that Trade Me and Afterpay (and their related bodies corporate) are not a party to a Seller's transaction with a buyer, and Afterpay and Trade Me (and their related bodies corporate) will not be liable for:

a. any non-delivery by the Seller; and
b. any damage or loss caused in connection with the Seller providing the item to the buyer.

13.2. To the extent permitted by law, the Seller agrees to indemnify and hold harmless Afterpay, Trade Me, their related body corporates and their respective officers, directors, employees and agents, from and against all losses, claims, actions, liabilities, damages, judgments, offsets, amounts paid in settlement, costs and expenses (including reasonable legal fees, disbursements and collections fees) which arise as a result of or in connection with any material non-compliance with these Terms.

13.3. Except as expressly provided in this Agreement all representations or warranties (statutory, express or implied) in respect of the Service, except any which may not lawfully be excluded, are expressly excluded, including without prejudice to the generality of the foregoing, any implied warranties of merchantability, service quality and fitness for a particular purpose.

13.4. Where the Seller is liable to Trade Me for any amount under these terms, Trade Me may immediately notify the Seller and deduct such amount from the Seller's Pay Now / Afterpay account.

13.5. Where the Seller's Pay Now / Afterpay account does not have sufficient balance to cover money owed to Trade Me, the Seller must, if directed by Trade Me, immediately make payment sufficient to cover the full amount owed.

13.6. Trade Me may in its sole discretion restrict or suspend the Seller's Trade Me account until all amounts owed to Trade Me are paid in full.

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14. Suspension and termination

14.1. Without limiting any of Trade Me's rights under Trade Me's terms and conditions, Trade Me may suspend or restrict any Seller's use of the Service immediately, and with subsequent notice to the Seller, if:

a. the Seller fails to comply with any of the Seller's obligations under this agreement or Trade Me's terms and conditions;
b. the Seller has a history of fraudulent or inappropriate behaviour, or the Seller's Trade Me account is linked to any suspicious transaction;
c. there is evidence that buyers who transact with the Seller via the Service are disproportionately likely to default on their repayments to Afterpay; or
d. the Seller may pose a risk to the smooth operation, safety or security of the Service, or to other members using the Service.

14.2. In limited circumstances, Trade Me or Afterpay may temporarily suspend or restrict access to the Service or certain functionality of the Service. In such circumstances, Trade Me will endeavour to provide reasonable advance notice to members who may be affected (but does not warrant that this will always be possible). Trade Me may also restrict or suspend a Seller's access to certain leaf categories where Trade Me considers this appropriate.

14.3. Trade Me may terminate this agreement immediately by notice to the Seller if the Seller breaches these Terms, Trade Me's terms and conditions, or engages in conduct that Trade Me (acting reasonably) deems inappropriate or unacceptable or likely to damage the reputation or goodwill of Trade Me.

14.4. Either party may terminate this agreement for any reason by giving not less than two weeks' notice in writing to the other party. Upon termination of this agreement, all provisions which by their nature are intended to survive termination, including but not limited to clauses 1.2, 3.6, 5.2, 8, 9, 10, 12, 13, 14.4 and 15 to the extent they relate to transactions formed prior to the agreement's termination, shall remain in full force and effect.

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15. Trade Me Terms and Conditions

15.1. Where there is any direct conflict between the Trade Me terms and conditions and these Terms, these Terms shall prevail. For the avoidance of doubt, nothing in these Terms limits Trade Me's ability to take the actions contemplated by clause 2.6 of the Trade Me terms and conditions as they may apply to the Service.

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