Payments Terms of Service
IF YOU ARE SUBJECT TO UNITED STATES LAW, PLEASE NOTE: SECTION 23 OF THESE TERMS OF SERVICE CONTAIN AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH ENSEMBLE ARE RESOLVED. BY ACCEPTING THESE PAYMENTS TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
Terms of Service
These terms and conditions (“Payments Terms”) govern the payment services, including payment collection services, payments and payouts, conducted through or in connection with the Ensemble Site, Application or Services (“Payment Services”) that Ensemble, LLC (hereinafter referred to as “Ensemble”, “we”, “us” or “our”) provide to you in connection with your use of the Ensemble Site, Application and/or Services, and constitute a binding legal agreement between you and Ensemble. The Ensemble Terms of Service (“Ensemble Terms”) separately govern your use of the Site, Application and Services. All capitalized terms have the meaning set forth in the Ensemble Terms unless otherwise defined in these Payments Terms.
YOU ACKNOWLEDGE AND AGREE THAT, BY USING THE PAYMENT SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE PAYMENTS TERMS. IF YOU DO NOT AGREE TO THESE PAYMENTS TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE PAYMENT SERVICES. Failure to use the Payment Services in accordance with these Payments Terms may subject you to civil and criminal penalties. If you accept or agree to these Payments Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Payments Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Ensemble reserves the right, at its sole discretion, to modify or terminate the Payment Services or to modify these Payments Terms at any time and without prior notice. If we modify these Payments Terms, we will post the modification on the Site or via the Application and/or provide you notice of the modification by email. We will also update the “Last Updated” date at the top of these Payments Terms. Changes to the Payments Terms will be effective at the time of posting. Your continued use of the Payment Services will constitute acceptance of the revised Payments Terms. Additionally, if the modified Payments Terms contain material changes applicable to existing Users (by decreasing your rights or increasing your responsibilities), we will provide you with notice prior to the changes taking effect. If the modified Payments Terms are not acceptable to you, your only recourse is to cease using the Payment Services. If you do not close your Ensemble Account you will be deemed to have accepted the changes.
The Payment Services are intended solely for persons who are 18 or older. Any use of the Payment Services by anyone under 18 is expressly prohibited. By using the Payment Services you represent and warrant that you are 18 or older.
In order to use the Payment Services, you must first register to create an Ensemble Account and become a User in accordance with the “Account Registration” section of the Ensemble Terms. You acknowledge and agree that anyone you authorize to use your Ensemble Account may use the Payment Services on your behalf and that you will be responsible for any payments made by such person.
You authorize Ensemble, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud. This may include asking you to provide a form of government identification (e.g. driver’s license or passport), your date of birth, your address, and other information requiring you to take steps to confirm ownership of your email address, Payment Methods or Payout Methods; or attempting to screen your information against third party databases. You further authorize Ensemble (or its affiliate) to request a consumer report on you from a consumer reporting agency. This consumer report will be requested and utilized in compliance with applicable law, including the Fair Credit Reporting Act (U.S.), Data Protection Act (UK) and the Consumer Rights Act (UK). Ensemble reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any of this information.
Financial Terms for Payments
- Key Definitions“Payment Method” means a payment method that you have added to your Ensemble Account, such as a credit card, debit card or PayPal.
“Payout Method” means a payout method that you have added to your Ensemble Account, such as PayPal, direct deposit or electronic funds transfer, a prepaid card or a debit card (where available).
Ensemble will collect the Total Fees from each User either at the time of Checkout or upon the User’s Bill-On Date. Ensemble will initiate payment of the Usage Fees (less Ensemble’s Space Fees) to the Space in most cases daily on a two day rolling basis, unless the Space and Ensemble agree to a different time or trigger for payment. The time it takes for the Space to receive payouts once released by Ensemble may depend upon the Payout Method chosen by the Space. Some Payout Methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services on the Space, including by deducting their charges from the payout amount.
If you owe or agree to pay any amount via Ensemble (whether as a result of your actions as a User or otherwise), then Ensemble may (but is not obliged to) withhold the amount owing to Ensemble from any payout amounts due to you as a Space, and use the withheld amount to setoff the amount owed by you to Ensemble. If Ensemble does so, then your obligation to pay Ensemble will be extinguished to the extent of the amount withheld by Ensemble, and Ensemble will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have chargebacks on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees, or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Ensemble by you. Such communication may be made by Ensemble or by anyone on their behalf, including but not limited to a third party collection agent.
- Financial Terms for Users regarding PaymentsYou acknowledge and agree that, notwithstanding the fact that Ensemble is not a party to the agreement between you and the Space, Ensemble acts as the Space’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Space. Upon your payment of the Total Fees to Ensemble, your payment obligation to the Space for the Usage Fees is extinguished, and Ensemble is responsible for remitting the Usage Fees (less the Space Fees and any Taxes in respect of the Space Fees, such as VAT in Europe), in the manner described in these Payments Terms.
You as a User agree that Ensemble may charge your Payment Method the Total Fees for any Usage in connection with your Ensemble Account. As a general rule, Ensemble will collect the Total Fees due for all Event and Booking Reservations at the time of Reservation. In instances in which Ensemble is unable to collect Total Fees in the ordinary course, Ensemble may elect to collect Total Fees at a later point in time.
In connection with your Event or Booking Reservation, you will be asked to provide customary billing information such as name, billing address and Payment Method information either to Ensemble or its third-party payment processor(s). You agree to pay Ensemble for any Event or Booking Reservations made in connection with your Ensemble Account in accordance with these Payments Terms by one of the methods supported by the Site or Application (e.g. by PayPal, credit card or debit card). You hereby authorize the collection of such amounts by charging the Payment Method provided as part of the Booking or Event Reservation, either directly by Ensemble or indirectly, via a third-party online payment processor or by one of the payment methods described on the Site or Application.
Please note that Ensemble cannot control any fees that may be charged to a User by his or her third-party payment service provider related to Ensemble’s collection of the Total Fees, and Ensemble disclaims all liability in this regard. Whatever Payment Method you use may be subject to additional terms and conditions imposed by the applicable third-party payment service provider; please review such terms and conditions before using your Payment Method.
- Service Fees and Other FeesEnsemble collects the Service Fees charged pursuant to the Ensemble Terms. Where applicable, Ensemble may also charge Taxes (such as VAT in Europe) in respect of the Space Fees and User Fees. Ensemble deducts the Space Fees from the Usage Fees before remitting the balance to the Space as described in these Payments Terms. User Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Ensemble to Spaces via the Payout Method selected by the Space in the Space’s currency of choice, depending upon the selections the Space makes via the Site, Application and Services. Amounts may be rounded up or down as described the “Rounding Off” portion of this Section 6.
Please note that Ensemble may impose or deduct currency conversion costs on or from any payments or payouts by Ensemble in currencies other than U.S. dollars. More information on any such costs or deductions is available via the Site and Application, and in Section 7, “Currency Conversion”, below. More information on Services Fees can be found at www.ensembleapp.com. Except as otherwise provided herein, Service Fees are non-refundable.
- General Event, Booking and Financial TermsCancellations and Refunds
If, as a User, you cancel your Event or Booking Reservation refund any nominal amounts charged to your Payment Method in connection with the Event or Booking Reservation within a commercially reasonable time. If, as a User, you wish to cancel an Event or Booking Reservation made via the Site, Application and Services, Ensemble will refund the Usage Fees and any other amounts charged to you only as permitted under the Ensemble Terms, including the terms of the applicable cancellation policy.
If a Space cancels an Event or Booking Reservation made via the Site, Application or Services, Ensemble will refund the Total Fees for such Event or Booking Reservation to the applicable User within a commercially reasonable time of the cancellation.
If, as a Space, you cancel an Event or Booking Reservation, you agree that Ensemble may collect any cancellation fees imposed pursuant to the Ensemble Terms. Ensemble will treat your cancellation as a payment authorization, and Ensemble may withhold any cancellation fees from your future payouts or charged to any Payment Method on file in your Ensemble Account.
If Ensemble decides for any reason that it is necessary or desirable to cancel an Event or Booking Reservation made via the Site, Application and Services pursuant to the Ensemble Terms you agree that Ensemble and the relevant User or Space will not have any liability for such cancellations or refunds.
If, as a Space, your User cancels an Event or Booking Reservation or Ensemble decides that it is necessary to cancel an Event or Booking Reservation, and Ensemble issues a refund to the User in accordance with the Ensemble Terms or other applicable cancellation policies, you agree that in the event you have already been paid, Ensemble will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Usage Fees due to you.
For certain Usage, Users may be required to make recurring, incremental payments toward the Total Fees owed for Usage in the applicable Space (collectively, “Recurring Payments”). More information on Recurring Payments (including the amount and the frequency of the payment) will be made available via the Site, Application and Services, if applicable. If Recurring Payments apply to Usage, then the User authorizes Ensemble, on behalf of the Space, to collect the Total Fees and the Space agrees that Ensemble will initiate payouts to the Space, in the increments and at the frequency associated with the applicable Recurring Payments, each as identified on the Site, Application and Services. You may stop payment of a Recurring Payment by notifying Ensemble orally or in writing at least three (3) business days before the scheduled date of the payment. Ensemble may require that you give written confirmation of a stop-payment order within fourteen (14) days of an oral notification. If you fail to provide written confirmation within fourteen (14) days as requested, Ensemble is not obligated to honor your request to stop any future Recurring Payments. If you have any questions regarding your Recurring Payments, please contact Ensemble.
Ensemble may, in its sole discretion, round up or round down amounts that are payable from or to Users or Spaces to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example,Ensemble will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Ensemble may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Ensemble to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or Payment Method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
Booking and Event Modifications
If, as a User, you owe additional amounts to Ensemble due to a Booking or Event Modification, you agree that Ensemble may collect such amounts by charging the Payment Method used to make your Booking or Event. If, as a Space, you owe Ensemble any amounts due to a Booking or Event Modification, you agree that Ensemble may collect those amounts pursuant to the “Financial Terms for Spaces regarding Bookings” portion of this Section 6 and as otherwise permitted under these Payments Terms.
Foreign Currency Conversions
“User Currency” means the currency in which a User has to pay to a particular Space. At the time the User submits payment, the Ensemble platform will select the User Currency, based on the User’s country of origin as determined by (i) Ensemble’s platform logic; (ii) the Payment Method associated with the User; or (iii) both. Ensemble supports only a certain number of currencies as User Currencies.
“Space Currency” means the default currency associated with the country in which the Space is located. For example, the Space Currency for a home located in New York would be U.S. dollars, and the Space Currency for a home located in Japan would be Japanese Yen.
“Base Exchange Rate” means a system-wide rate used by Ensemble for currency conversion that is in effect at the time the currency conversion is processed, and does not include any fee or mark-up by Ensemble. Ensemble establishes the Base Exchange Rate using data from one or more third parties such as OANDA (www.oanda.com).
“Adjusted Exchange Rate” means a rate for currency conversion that is calculated by adding a mark-up to the Base Exchange Rate. This mark-up represents a charge imposed by Ensemble for its holding costs and foreign currency risks.
Each currency conversion is processed at a currency conversion rate. This rate generally refers to the amount of one currency that must be paid to buy a certain amount of another currency at a given time. For example, if it costs US$125.00 to buy €100.00, the currency conversion rate of U.S. dollars to Euros would be 1.25, and the currency conversion rate from Euros to U.S. dollars would be 0.8. Currency conversion rates will vary from time to time.
Ensemble will process a currency conversion in the following situations:
Where the User Currency is different from the Space Currency when a User submits a payment to a Space, Ensemble will calculate the Total Fees in the User Currency by applying either the Base Exchange Rate or the Adjusted Exchange Rate at the time of the payment to the Total Fees in the Space Currency. The User Fee, which is a percentage of the applicable User Fees, will be calculated based on the User Fees in the User Currency (i.e. after conversion from the Space Currency). The Adjusted Exchange Rate will be applied if the User Currency is different from the Space Currency.
When an Event or Booking Reservation is modified or cancelled, and there had been a currency conversion when the Booking was submitted, the currency conversion for any additional payments required of the User or any refund to the User will be processed at the same rate as applied to the earlier payment by the User.
Payment Method Information
You authorize Ensemble to store your Payment Method information and charge your Payment Method as outlined in these Payments Terms. If your Payment Method’s account information changes (e.g. account number, routing number, expiration date), we may acquire that information from our financial services partner or your bank and update your Payment Method on file in your Ensemble Account.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Payment Services. In connection with your use of the Payment Services, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court;
- use the Payment Services for any commercial or other purposes that are not expressly permitted by these Payments Terms;
- use the Payment Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- register any Payment Method with your Ensemble account that is not yours or you do not have authorization to use;
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- attempt to probe, scan, or test the vulnerability of any Ensemble system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Ensemble or any of Ensemble’s providers or any other third party (including another user) to protect the Payment Services;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Payment Services to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Payment Services; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
Ensemble has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. In addition, and as set in these Payments Terms, Ensemble may take a range of actions against you, including but not limited to limiting access to your Ensemble Account and any associated Payment Services, for a violation of this Section 9 or these Payments Terms.
Intellectual Property Ownership and Rights Notice
The Payment Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Payment Services, including all associated intellectual property rights, are the exclusive property of Ensemble and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Payment Services. All trademarks, service marks, logos, trade names, and any other proprietary designations of Ensemble used on or in connection with the Payment Services are trademarks or registered trademarks of Ensemble in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with Payment Services are used for identification purposes only and may be the property of their respective owners.
Additional Products and Terms
Certain Payment Services or new or different products and services offered by Ensemble from time to time may have different terms and conditions posted or require you to agree with and accept additional terms and conditions. If additional terms are required for any Payment Service or other product or service, Ensemble will provide you those additional terms and conditions at the time the Payment Service or other product or service is offered or made available to you. If there is a conflict between these Payments Terms and terms and conditions posted for a specific Payment Service or other product or service, the latter terms and conditions will take precedence with respect to your use of or access to that Payment Service or other product or service.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit access to your Ensemble Account and any associated Payment Services.
IF YOU CHOOSE TO USE THE PAYMENT SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT ENSEMBLE PROVIDES THE PAYMENT SERVICES TO YOU SUBJECT TO YOUR STATUTORY RIGHTS BUT OTHERWISE “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED IN THESE PAYMENTS TERMS. WITHOUT LIMITING THE FOREGOING, ENSEMBLE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ENSEMBLE MAKES NO WARRANTY THAT THE PAYMENT SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ENSEMBLE MAKES NO WARRANTY REGARDING THE QUALITY OF THE PAYMENT SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ENSEMBLE OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF THE PAYMENT SERVICES REMAINS WITH YOU. IF YOU PERMIT OR AUTHORIZE ANOTHER PERSON TO USE YOUR ENSEMBLE ACCOUNT IN ANY WAY, YOU ARE RESPONSIBLE FOR THE ACTIONS TAKEN BY THAT PERSON. NEITHER ENSEMBLE NOR ANY OTHER PARTY INVOLVED IN PROVIDING PAYMENT SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE PAYMENTS TERMS, FROM THE USE OF OR INABILITY TO USE THE PAYMENT SERVICES, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PAYMENT SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ENSEMBLE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE SPACES PURSUANT TO THESE PAYMENTS TERMS, IN NO EVENT WILL ENSEMBLE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE PAYMENTS TERMS AND YOUR USE OF THE PAYMENT SERVICES INCLUDING, BUT NOT LIMITED TO, FROM THE USE OF OR INABILITY TO USE PAYMENT SERVICES, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE VIA THE ENSEMBLE PLATFORM AS A USER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A SPACE, THE AMOUNTS PAID BY ENSEMBLE TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ENSEMBLE AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Ensemble and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Payment Services, or your violation of these Payments Terms.
Export Control and Restricted Countries
You may not use the Payment Services except as authorized by United States law, the laws of the jurisdiction in which you reside, and any other applicable laws. In particular, but without limitation, the Payment Services may not be used to send or receive funds: (i) into any United States embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Payment Services, you represent and warrant that: (i) neither you nor your listed Space is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. In addition to complying with the above, you must also comply with any relevant export control laws in your local jurisdiction.
Except as they may be supplemented by a document referenced and incorporated herein or by additional Ensemble policies, guidelines, standards, or terms for a specific product, feature, service or offering, these Payments Terms constitute the entire and exclusive understanding and agreement between Ensemble and you regarding the Payment Services, and these Payments Terms supersede and replace any and all prior oral or written understandings or agreements between Ensemble and you regarding the Payment Services.
- Termination for ConvenienceYou may terminate these Payments Terms at any time by following the termination procedures specified in the Ensemble Terms. Terminating these Payments Terms will also serve as notice to cancel your Ensemble Account pursuant to the Ensemble Terms. If you cancel your Ensemble Account as a Space, Ensemble will provide your Users a full refund. If you cancel your Ensemble Account as a User, Ensemble will initiate a refund based upon the terms of the applicable cancellation policy.
Without limiting our rights specified below, Ensemble may terminate these Payments Terms for convenience at any time by giving you 30 days’ notice via email to your registered email address.
- Termination for Breach, Suspension and Other MeasuresEnsemble may immediately, without notice terminate these Payments Terms, limit your use of or access to the Payment Services, or temporarily or permanently suspend your Ensemble Account if (i) you have breached these Payments Terms, including but not limited to any breach of your warranties outlined in these Terms or breach a provision under Section 9, “User Conduct”, (ii) you have provided inaccurate, fraudulent, outdated or incomplete information, (iii) you have violated applicable laws, regulations or third party rights, or (iv) Ensemble believes in good faith that such action is reasonably necessary to protect other Users, Ensemble or third parties, for prevention of unlawful activity or fraud, risk assessment, security or investigation purposes.
In case of non-material breaches and where appropriate, you will be given notice of any measure by Ensemble and an opportunity to resolve the issue to Ensemble’s reasonable satisfaction.
If you are a Space and we terminate these Payments Terms, limit your use of or access to the Payment Services, or temporarily or permanently suspend your Ensemble Account, (i) we will refund your Users in full for any and all payments yet to be paid out, irrespective of preexisting cancellation policies, and (ii) you will not be entitled to any compensation for payments that were cancelled.
- ConsequencesIf your access to or use of the Payment Services has been limited or your Ensemble Account has been suspended or these Payments Terms have been terminated by us, you may not register a new Ensemble Account or attempt to access and use the Payment Services through other Ensemble Accounts.
- SurvivalIf you or we terminate these Payments Terms, the clauses of these Payments Terms that reasonably should survive termination of these Payments Terms will remain in effect.
You may not assign or transfer these Payments Terms, by operation of law or otherwise, without Ensemble’s prior written consent. Any attempt by you to assign or transfer these Payments Terms, without such consent, will be null and of no effect. Ensemble may assign or transfer these Payments Terms, at its sole discretion, without restriction. Subject to the foregoing, these Payments Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Payments Terms, will be in writing and given by Ensemble (i) via email (in each case to the address that you provide) or (ii) by posting to the Ensemble Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Payments Terms and your use of the Payment Services will be interpreted in accordance with the laws of the State of Colorado and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Denver County, Denver, Colorado or a United States District Court, located in Denver, Colorado for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in Section 23, “Dispute Resolution”, below.
You and Ensemble agree that any dispute, claim or controversy arising out of or relating to these Payments Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Ensemble are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Ensemble otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Payments Terms.
Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. 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 “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at +1 800 778 7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Colorado 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 seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Ensemble otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Ensemble submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of Section 15, “Limitation of Liability”, above, as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Ensemble will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Ensemble will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of Section 2, “Modification”, above, if Ensemble changes this “Dispute Resolution” section after the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Ensemble’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Ensemble in accordance with the provisions of this “Dispute Resolution” section as of the date you last accepted these Payments Terms (or accepted any subsequent changes to these Payments Terms).
The failure of Ensemble to enforce any right or provision of these Payments Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Ensemble. Except as expressly set forth in these Payments Terms, the exercise by either party of any of its remedies under these Payments Terms will be without prejudice to its other remedies under these Payments Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Payments Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Payments Terms will remain in full force and effect.
Third Party Beneficiary
These Payments Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Payments Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Payments Terms.