Purchase Payment Contract

Summary of Atome

  • The Instalment Payment Structure allows you to pay for your purchase over three (3) Instalment Payments as set out in your Payment Schedule. The first Instalment Payment is due immediately upon placing the Order. The remaining Instalment Payments will be in the amounts and are due on the due dates specified in your Payment Schedule.
  • You must be over 18 years old and be the authorized holder of an eligible debit card or credit card to use the Instalment Payment Structure.
  • This Purchase Payment Contract forms part of the Payment Schedule, which contains details including the Purchase Price, short description of the Merchant Service and the Payment Schedule.
  • All orders are subject to approval of both the Merchant and Atome (or the Assignee).
  • If a payment is not successfully processed on or before the due dates specified in your Payment Schedule, your Account will be suspended and you will be subject to Administrative Charges.
  • In order to reactivate your Account, you must pay the total amount that is due by you, plus any Administrative Charge.
  • The way your Instalment Payments are calculated and the Payment Schedule may change if your Account had a previous Suspension. (See Clause 2 for more details).
  • The delivery/quality of goods is the responsibility of the Merchant with which you make the purchase regardless of any subsequent assignment.

Please read this Purchase Payment Contract carefully.  

Last Updated: [July], 2020

  1. Parties to this Contract

  1. This Purchase Payment Contract (this “Contract”) forms a legally binding agreement between you, as a customer (“you”, “your”, “Customer”) and us, as the merchant (“we”, “us”, “our”, “Merchant”). This Contract forms part of the Payment Schedule (as defined below), pursuant to which you will purchase goods or services (“Merchant Services”) from us through our Sites (defined below) via an extended payment feature under which payment may be made in interest-free instalments (“Instalment Payment Structure”).

  1. The term “Sites” as used in this Contract includes any physical store of the Merchant, the website of the Merchant, the Merchant’s mobile, tablet and other smart device applications, the Merchant’s application program interface, any equivalent mirrors, replacements, substitutes or backup websites, and pages that are associated with the Merchant Services.

 

  1. By placing an order for purchase of Merchant Services and selecting the Instalment Payment Structure (“Order”), you agree to be bound by the terms of this Contract.

  1. Description of the Instalment Payment Structure

  1. Atome Platform. To offer this Instalment Payment Structure, we utilise the services of a third party technology service provider, Atome HK Limited (“Atome”). Atome operates the Atome website, at https://www.atome.hk, including any subdomains thereof, and any other websites through which Atome makes its services available through its mobile, tablet and other smart device applications, and application program interfaces (collectively, the “Atome Platform”). Through the Atome Platform, Atome provides services by assisting in the administration of the Instalment Payment Structure between the Merchant and the Customer.

  1. The sale of the Merchant Services to you with the Instalment Payment Structure is conditional upon:

  1. you having created, and are maintaining a valid and active account with Atome for use and access to the Atome Platform (“Account”), which is not subject to any Suspension;

  1. you being an authorised holder of an eligible debit card, credit card or other payment method as may be accepted by Atome from time to time (“Payment Method”);

  1. you having met, and continuing to meet, such eligibility requirements and verification checks and assessments and terms and conditions as may be imposed by Atome from time to time in relation to the Instalment Payment Structure and the Account (the “Terms”) available at https://www.atome.hk/en-hk/terms-of-service;

  1. this Contract being accepted by us, Atome or the Assignee; and

  1. you having made payment of the first Instalment Payment through the Payment Method.

  1. If any of the conditions under Clause 2.2 is not satisfied, this Contract is deemed cancelled and you agree to take all necessary actions and execute all necessary documents to arrange with us an alternative contract to purchase the Merchant Services without the use of the Instalment Payment Structure.

  1. By entering into this Contract, you make the following representations and warranties, which are repeated at all times during which any Instalment Payment is outstanding:

  1. you are at least eighteen (18) years old;

  1. you are capable of entering into a legally binding contract;

  1. all information that you provide to us is true, complete and accurate and you agree not to misrepresent your identity;

  1. the email address and mobile telephone number which you have provided to Atome when creating an Account are valid and verifiable, and you have sole control over them;

  1. the physical residential and delivery address provided by you are true and genuine; and

  1. you are the authorised holder of an eligible debit card, credit card or other payment method as may be accepted by Atome from time to time.

  1. How it works. The Instalment Payment Structure operates in the following manner:  

  1. first, you will need to place an Order with the Merchant through the Atome Platform to use the Instalment Payment Structure. If:

  1. you are placing the Order at a Site which is a physical store of the Merchant, we will provide you with a QR code specific to the Site from which you are placing your Order. You will need to scan this QR code through your Account with Atome. You will need the relevant system requirements and device that can run the Atome Platform for the QR code to work, otherwise you may not be able to utilise this Instalment Payment Structure and we shall not accept any responsibility in relation to the same;

  1. you are placing the Order at a Site which is an online store (including web-based and app-based) of the Merchant, you must first select Atome as a check-out option and will then be redirected to the Platform to complete the transaction.  

  1. you will then be transferred to a page on the Atome Platform which requires you to enter the full payable amount of purchase price for the Merchant Services (including any applicable taxes and delivery fees, and subject to any deductions for Merchant Credits as set forth below in Clause 2.9, “Purchase Price”) that you wish to purchase. The Purchase Price to be entered by you will be the sole basis of calculating the amount of Instalment Payments payable by you (as defined below). If an incorrect Purchase Price is inserted, you will need to initiate a refund in accordance with Clause 4;

  1. you will be prompted to select whether to pay part of the Purchase Price with any Promotional Credits (as defined below) that you are holding in your Account to purchase the Merchant Services;

  1. you will then be required to review the following information on a confirmation page that is generated on the Atome Platform:

  1. the Purchase Price of your Order;

  1. a short description of the Merchant Services;

  1. whether any part of the Purchase Price is payable with any Promotional Credits;

  1. the relevant due dates for payments of the Purchase Price and the amount of Purchase Price payable on each due date (each, an “Instalment Payment”); and

  1. your preferred Payment Method (“Preferred Payment Method”).

  1. you will then be required to click “confirm” on the confirmation page generated by the Atome Platform as set out under Clause 2.5.4 above to confirm that the information on that confirmation page is accurate. Once you have confirmed:

  1. you will receive a confirmation schedule (“Payment Schedule”) that sets out the terms of the Order, including the terms under Clause 2.5.4, which will form part of this Contract and will be binding on you after being accepted by the Merchant, Atome or the Assignee. A copy of the accepted Payment Schedule will be available for view in your Account; and

  1. the first Instalment Payment will be charged from your Preferred Payment Method simultaneously on our behalf by Atome or the Assignee or such other collection agent as we may appoint from time to time.

  1. Your Order is conditional to being accepted by us, the Assignee or Atome in accordance to Clause 2.2, and the first Instalment Payment being successfully paid by you. If we, the Assignee or Atome at our sole direction decide:

  1. to accept your Order, you will be notified via the Atome Platform of the acceptance and the Payment Schedule shall become binding. You will be required to pay for the Merchant Services in accordance with the timetable of the Payment Schedule; or

  1. to reject your Order (whether by reasons of the incorrect Purchase Price input by you under Clause 2.5.2, because your first Instalment Payment is not completed, or for any other reason). If your Order has been rejected, you will be informed and we will not provide any of the Merchant Services to you.

  1. The Purchase Price to be entered by you under 2.5.2 shall be the purchase price for the Merchant Services as displayed on the Merchant’s Sites and shall not be subject to any set-offs, deductions, goods or services tax (if any) and any applicable delivery fees. The Customer acknowledges that it is the Customer’s responsibility to ensure that the correct Purchase Price is being entered.

  1. You are responsible for ensuring that you have sufficient funds available in your Preferred Payment Method to make Instalment Payments on the dates they become payable (including the first Instalment Payment which will be chargeable immediately upon placing the Order and which, if not completed in a timely manner, will cause your Order to be rejected and no Merchant Services shall be made available to you).  NEITHER WE NOR ATOME SHALL BEAR ANY LIABILITY OR RESPONSIBILITY FOR LOSSES OF ANY KIND THAT YOU MAY SUFFER AS A RESULT OF FAILING TO HAVE SUFFICIENT FUNDS IN YOUR PREFERRED PAYMENT METHOD AVAILABLE TO MAKE INSTALMENT PAYMENTS ON THE DATES SPECIFIED IN YOUR PAYMENT SCHEDULE.

  1. Late or Rejected Payments

  1. There are no service fees or interest associated with using the Instalment Payment Structure. However, if an Instalment Payment is not paid on or prior to the due date as specified in your Payment Schedule (including if any Instalment Payment made through the Preferred Payment Method is declined by the recipient or the recipient’s bank) or the Instalment Payment is not successfully processed on the relevant due date, you will be immediately suspended from the Atome Platform and your Account may be deactivated by Atome (“Suspension”). You will also be subject to administration fees charged by Atome, at its sole discretion and as may be notified to you on the Atome website or through other means, in relation to the Suspension (“Administrative Charge”), which you agree to pay to Atome. For further details, please refer to the Terms.

  1. You authorize us and Atome, to the extent permitted by law, to satisfy any monetary liability you owe us by (a) debiting your Preferred Payment Method or any other Payment Method at a later time or date in accordance with Clause 3, (b) debiting any other debit card or credit card for which you have provided details prior to the due date of an Instalment Payment, (c) offsetting the payment amount against any amounts we may owe to you, or (d) any other legal means.

  1. You may be granted promotional payment credits from time to time (“Promotional Credits”) which you may use as credits for payment for the Merchant Services by selecting the same in accordance to Clause 2.5.3. The Promotional Credits may be granted by Atome (“Atome Credits”) or by us (“Merchant Credits”). Please be aware that:

  1. the use of Atome Credits is subject to the applicable terms and conditions imposed by Atome when the Atome Credits awarded to you and any issues or disputes in relation to the Atome Credits should be referred to Atome; and

  1. the use of Merchant Credits is subject to the applicable terms and conditions imposed by us when the Merchant Credits awarded to you and any issues or disputes in relation to the Merchant Credits should be referred to us.

  1. You acknowledge and agree that:

  1. Atome or the Assignee may appoint debt collection agencies to collect any sum due and payable that you have failed to pay;

  1. the Instalment Payments may not be in equal payments as it will be automatically calculated by the Atome Platform depending on: (i) your prior payment history; (ii) the length of time you have been using the Instalment Payment Structure; (iii) whether your Account was previously subject to a Suspension or not; and (iv) other factors that Atome may deem relevant;

  1. the Instalment Payment Structure may not be available for all purchases of Merchant Services on our Site and we may, at our discretion, set certain prescribed minimum or maximum purchase amounts for which the Instalment Payment Structure will be available; and

  1. the Payment Schedule shall be conclusive evidence as to the amount of Instalment Payments, the Purchase Price and the due dates of the Instalment Payments.

  1. We do not give any express warranty or guarantee as to the suitability, reliability or availability of the Instalment Payment Structure.

  1. INSTALMENT PAYMENT AUTHORIZATION

  1. For the purpose of paying the Instalment Payments, you hereby expressly consent to authorize and instruct us or Atome (with or through any third party payment processors or providers) to initiate recurring payments from the Preferred Payment Method in your Account for such amounts and on such scheduled dates as per your Payment Schedule. All Instalment Payments will be automatically charged to your Preferred Payment Method in accordance with the corresponding Payment Schedule.

  1. You acknowledge that you are giving us or Atome (with or through any third party payment processors or providers) the ability to collect or reverse variable payment amounts from or to your Payment Method, in accordance with the Payment Schedule and the Contract.

  1. You agree to execute any and all authorizations and documents as may be required by us or Atome for the purpose of setting up the recurring payments with the bank of your Preferred Payment Method.

  1. You agree to be bound by any rules that your debit card or credit card issuer requires for pre-authorized debit card or credit card transactions. You are responsible for all fees charged by your financial institution associated with the Instalment Payments.

  1. You must update your Account with all changes to your credit/debit card information and your Preferred Payment Method by logging into your Account. If you do not update your Account with such changes, we may be unable to process the relevant Instalment Payment (including the first Instalment Payment) and your Order may be rejected and/or you may be subject to a Suspension.

  1. NEITHER WE NOR ATOME SHALL BEAR ANY LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OF ANY KIND THAT YOU MAY SUFFER AS A RESULT OF YOUR ACCOUNT BEING SUSPENDED, DEACTIVATED OR CLOSED FOR ANY REASON. FOR THE AVOIDANCE OF DOUBT, THIS SHALL INCLUDE ANY LOSSES THAT MAY BE SUFFERED IN RELATION TO ANY PAYMENT MADE ON ITEMS INCORRECTLY BILLED OR FOR ANY DELAY IN THE ACTUAL DATE ON WHICH YOUR ACCOUNT IS DEBITED OR YOUR PAYMENT METHOD IS CHARGED.

  1. Order Confirmation and Errors

  1. As mentioned in Clause 2.5.2, you are responsible for inputting the correct Purchase Price and reviewing the Order(s) to ensure they appear accurately in your Payment Schedule.

  1. In the event of an incorrect entry of the Purchase Price, you may immediately request that we initiate the refund process for you for the proposed Order. However, whether or not we accede to such request shall at all times be subject to our sole discretion. We may, but shall not be obliged to, process a full refund and allow you to make another Order afresh. Without prejudice to the foregoing, we process all requests for refunds in accordance with Clause 5 below.

  1. YOU AGREE AND ACCEPT THAT NEITHER WE NOR ATOME SHALL BEAR ANY LIABILITY OR RESPONSIBILITY FOR LOSSES OF ANY KIND THAT YOU MAY SUFFER AS A RESULT OF A FAILING TO REVIEW THE TERMS OF A PROPOSED TRANSACTION OR YOUR FAILURE TO INPUT THE CORRECT PURCHASE PRICE.

  1. Refunds and Other Adjustments Subsequent to Purchase

  1. If you return or discontinue Merchant Services that have been purchased using the Instalment Payment Structure or request for a refund, return, or replacement as may otherwise be accepted or permitted by law, such refund, return or replacement shall be subject to our refund policy. You will have to notify us and directly arrange the return and refund with us.  A copy of our refund policy is available upon request.

  1. If we choose to accept a request for return, discontinuation or process a refund (entire or partial) in relation to an Order under the Instalment Payment Structure, we will initiate the refund process through the Atome Platform. Any refunds will be made to your Preferred Payment Method through the Atome Platform. No cash refunds will be made.

  1. Until the return, discontinuation or refund in Clause 5.2 has been processed through the Atome Platform, you will remain liable for the full payment of the Merchant Services. All Instalment Payments will continue to be processed in accordance with the dates set out in your Payment Schedule.

 

  1. Once the refund request has been accepted, the Refunded Amount will be returned to you using the same Payment Method used to purchase the Merchant Services. The Refunded Amount may be applied to reduce the next due Instalment Payment first, and then to the subsequent Instalment Payment until all of your remaining payment obligations are extinguished.

  1. We will process refunds as soon as reasonably practicable, however, the timing to receive any refund will vary based on the Payment Method and any applicable payment system (e.g., third party online payment processer, Visa, Mastercard, etc.) rules and practices.  You acknowledge and agree that any refund due to be repaid to your relevant Payment Method is subject to handling methods outside our or Atome’s control and you shall not hold us or Atome responsible for any delays in relation to the same.

  1. You agree to provide reasonable assistance to the Merchant to arrange for the return of the Merchant Services as a result of a refund request.

  1. If any Order that we have accepted to process a refund consisted of payments using Promotional Credits, whether such Promotional Credits remain valid is subject to the terms and conditions of the Promotional Credit used to purchase the Merchant Services.

  1. Your Use of the Instalment Payment Structure

  1. You agree to pay and accept sole liability for the full amount of the Purchase Price in three Instalment Payments as set forth in Clauses 2 and 5 to us, subject to any assignment of the right to receive the Instalment Payments by us to Atome or an assignee (the “Assignee”).  

  1. If your information, including your Payment Method information, changes, you agree to notify us and our service provider Atome immediately.

  1. You agree that we have a right to obtain information about you (including but not limited to your Payment Method, Order details, credit history and any other such information as may be required in connection with adopting the Instalment Payment Structure) from any third party card providers, payment processors or any other third parties as we may deem appropriate in connection with your use of the Instalment Payment Structure on the Atome Platform.

  1. Prohibited uses of the Instalment Payment Structure: You agree:

  1. not to use the Instalment Payment Structure for any unlawful or fraudulent activity and to immediately contact Atome if you believe that your Payment Method may be subject to an unauthorized transaction, account takeover or other type of fraudulent activity or security breach;

  1. not to breach any of the Terms; or

  1. not to use the Instalment Payment Structure to accomplish a cash advance.

  1. Changes to this Contract and Applicable Terms

  1. We in our discretion may apply our own terms and conditions to the Merchant Services including our own refund terms and conditions. We will provide those terms and conditions to you at your request. By placing an Order with us, you agree that our terms and conditions also apply to the sale or use of the Merchant Services.

  1. Once an Order is accepted, we will not change the  terms and conditions applicable to the Order as of the date of the Order (including our own terms and conditions that may be applicable).

  1. This Contract can be varied from time to time without requiring your express or implied consent and without prior notice of such variations or amendments for any future Order that you may place with us. You agree that it shall be your responsibility to monitor the Atome Platform and the Site for an updated version of this Contract, the Terms and applicable policies including our Privacy Policy regularly and prior to each Order made using your Account on the Atome Platform. Your continued placing of Orders after such variation or amendment to this Contract, the Terms, the Privacy Policy or any other relevant aspects of the Platform shall represent that you have fully understood  and accept the varied Contract, Terms, the Privacy Policy or any other relevant aspects of the Platform.

  1. Transfers or Assignments

  1. You cannot transfer or assign any rights you may have under this Contract without our prior written consent.

  1. We may transfer or assign this Contract, the debt and receivables arising from or in connection with this Contract, and our rights to receive the outstanding Instalment Payments from you, to a third party without your consent.

  1. You may be notified by Atome that the benefit to receive the Instalment Payment from you under a Payment Schedule and Contract is assigned to Atome or an Assignee. Such notice shall include the following information:
  1. the identity of the assignee (whether Atome or an Assignee);
  2. the amount of Instalment Payment being assigned; and
  3. the date of the completion of assignment.
  1. Complaints and Disputes

  1. Should you have any complaints and disputes in relation to:

  1. any Merchant Services provided by us, please contact us directly; or

  1. the Instalment Payment Structure, please contact Atome directly in accordance to the Terms found at https://www.atome.hk/en-hk/terms-of-service.

  1. Dispute Resolution

Any controversy, dispute or claim between you and us arising from or relating to this Contract and the Payment Schedule shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force at the time the notice of arbitration is submitted, which rules are deemed to be incorporated by reference in this Clause 13.4. The appointing authority shall be the HKIAC. The seat of the arbitration shall be Hong Kong. The tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.

  1. Applicable Law and Jurisdiction

Except as expressly provided otherwise, this Contract and the Payment Schedule, and all non-contractual matters arising from or in connection with this Contract and the Payment Schedule, are governed by, and will be construed under, the laws of Hong Kong Special Administrative Region of the People’s Republic of China. The United Nations Convention on Contracts for the International Sale of Goods is not applicable to this Contract and the Payment Schedule. 

  1. Limitation of Liability

  1. To the extent permitted by law, under no circumstances shall we or our subsidiary, our holding company or a subsidiary of our holding company (each, an “affiliate”), partners,  or Atome or its affiliates, employees, directors, officers, agents, representatives or any third parties providing services for and on behalf of Atome (collectively, the “Indemnified Parties”)  be liable to you for any indirect, incidental, consequential, special or exemplary damages (whether in contract, tort, equity or otherwise), arising from or relating to this Contract, the use of or inability to use an Account, the Instalment Payment Structure, or our or your liabilities to third parties arising from any source.

  1. You agree that the aggregate liability of the Indemnified Parties to you for all claims arising out of or related to this Contract or your use or inability to use the Instalment Payment Structure will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount you any affected order(s) giving rise to such damages, or (b) the amount of eight thousand Hong Kong dollars (HKD 8,000). These limitations will apply even if the above stated remedy fails of its essential purpose.

  1. Indemnification

  1. You agree to release, indemnify and hold harmless the Indemnified Parties from and against any costs, claims, actions, liabilities, damages, losses and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way related to:

  1. your access to, use of, or inability to use your Account or the Atome Platform;

  1. your use of the Instalment Payment Structure under this Contract;

  1. your breach or alleged breach of the terms of this Contract or the Terms;

  1. your violation of any rights of a third party, including but not limited to any negligent or wilful misconduct of you, your employees, contractors, representatives or agents, if relevant and as the case may be, or a breach of any contracts or other relationships between you and third parties;

  1. inability to repay your debts or any amounts due;

  1. your violation of any applicable law; or

  1. your failure to provide and maintain true, accurate, current and complete information when creating and registering for an Account. You shall cooperate as fully and as reasonably required in the defense of any such claim.

  1. Miscellaneous

  1. In the event of any inconsistency between the terms of this Contract and any other terms between the Parties in respect of the sale of Merchant Services via an Instalment Payment Structure that is subject to this Contract, this Contract shall control and govern the rights and obligations of the Parties, unless stated otherwise.

  1. Save for Atome or the Assignee and the parties to this Contract and the Payment Schedule, no other party shall have any right to enforce any term of this Contract and any applicable laws conferring any enforcement right on any person shall not apply to this Contract and the Payment Schedule.

  1. If any provision of this Contract (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Contract shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Contract.

  1. This Contract, including all documents or other material incorporated by reference, constitutes and contain the entire agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements. You and we acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.

  1. Nothing in this Contract or the Terms shall be deemed to constitute or imply any partnership, joint venture or agency, fiduciary relationship or other relationship between you, the Merchant, Assignee and Atome other than the contractual relationship expressly provided for in this Contract.

  1. No failure on our part to exercise and no delay on our part in exercising any right under this Contract and the Terms will operate as a release or waiver thereof, nor will any single or partial exercise of any right preclude any other or further exercise of it.

  1. Neither Party shall have any liability under or be deemed to be in breach of this Contract for any delays or failures in performance of this Contract which result from circumstances beyond the reasonable control of that party, except for payment obligations. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

  1. Without prejudice to any other rights or remedies a Party may have, the Parties each acknowledge and agree that damages may not be an adequate remedy for any breach of this Contract and the Parties shall be entitled to the remedies of injunction, specific performance and other equitable relief (but for the avoidance of doubt no right of rescission or, unless expressly permitted, termination) for any threatened or actual breach of this Contract.