Transaction Terms and Conditions of Use
SmarTrade SAS, a company incorporated under the laws of France, having its registered office at 120 Rue Jean Jaurès, 92300 Levallois-Perret, France and registered under number 910471838 RCS Paris B 910 471 838 (“Company”) is a provider of services for the facilitation of cross border B2B activities through its electronic platform https://app.tulyp.io/ (“SmarTrade SAS”), including escrow services, business verification services and associated services. This document is referred to as the “Escrow Terms and Conditions” and sets forth the terms and conditions which govern your use of the escrow services provided by the Company through Tulyp.io pursuant to the escrow agreement that will be executed for each relevant transaction (an “Escrow Agreement”).The terms “Escrow Account”, “Escrow Amount” and “Invoice Currency” shall have the meaning ascribed to them in the relevant Escrow Agreements.
1. GENERAL1.1 The Company owns and operates Tulyp.io.1.2 You expressly authorize and instruct the Company to act as escrow agent in connection with each Escrow Agreement entered by you subject to the Escrow Terms and Conditions. Tulyp.io expressly agrees to act as an escrow agent in connection with each Escrow Agreement entered by you subject to the Escrow Terms and Conditions.1.3 You expressly appoint the Company to act as the merchant of record for the purposes of collecting, holding, disbursing, or remitting the Escrow Amount (as defined in the relevant Escrow Agreement) domestically or internationally, as well as currency conversion and associated services.1.4 You should log onto Tulyp.io to verify the details and status of each Escrow Agreement to which you are a party to.1.5 Any reference to time or calendar day in Escrow Terms and Conditions shall be a reference to France Time and a calendar day in France, respectively.1.6 All communications shall be made in the English language.1.7 By using the Escrow Service, you accept the Escrow Terms and Conditions, and you accept to be bound by them.1.8 The General Terms and Conditions of the Company are incorporated into the Escrow Terms and Conditions by way of reference and in the event of any inconsistency between the Escrow Terms and Conditions and the General Terms and Conditions, the terms of the Escrow Terms and Conditions shall prevail.
2. ESCROW MECHANISM
Escrow Agreement
2.1 The Company provides the Escrow Service to all Registered Users of Tulyp.io platform.
2.2 As a Registered User, you can create and send an escrow proposal (“Escrow Proposal”) to your escrow counterparty (“Counterparty”) for acceptance.
2.3 You are required to provide Transaction information when creating an Escrow Proposal, either as on- screen input or documents containing such information as (but not limited to):details of the Products & Servicesdetails of the Counterpartydetails of the shipment and delivery of the Product & Servicesthe conditions to be fulfilled for Tulyp.io to release the Escrow Amount to the Sellercountries where Products & Services(a) originate from, (b) pass through or(c) will be delivered insuch other information as the Company may require to provide the Escrow Service
2.4 You must create and customize Escrow Proposals using the templates provided by Tulyp.io.
2.5 Once you create the Escrow Proposal, you can send it to your Counterparty for acceptance. You can also save it as “draft” without sending it to your Counterparty.
2.6 Tulyp.io notifies your Counterparty and provides instructions to access the Escrow Proposal for acceptance. Your Counterparty’s acceptance is required to create a legally binding Escrow Agreement with you.
2.7 Until your Counterparty’s acceptance, the status of the Escrow Proposal appears on your Tulyp.io dashboard as “pending” or “awaiting confirmation” or with a similar description.
2.8 Any Escrow Proposal that is (i) rejected by your Counterparty or (ii) not accepted within seven (7) days by your Counterparty, is flagged on Tulyp.io dashboard as “expired”.
2.9 Upon acceptance of the Escrow Proposal by your Counterparty, Tulyp.io notifies both parties and updates the Escrow status as “accepted” on your Tulyp.io dashboard.
2.10 Tulyp.io assigns a unique number (“Escrow Number”) to each Escrow Agreement.
2.11 You can create an Escrow Proposal in the role of a Buyer or a Seller.
2.12 Depending on your country of domicile, the Escrow Service may not be available or may limit your role to either only Buyer or only Seller. The Company may also limit (a) the Escrow Amount notional, (b) available Invoice Currencies, (c) currencies and payment methods available for the Buyer and (d) currencies in which the Seller can receive the Escrow Amount. Please read the Country Coverage section.
2.13 The Company allows the use of Escrow Service only for Permitted Products & Services.
2.14 The Company prohibits the use of Escrow Service for (a) Prohibited Industries, (b) Prohibited Countries, (c) illegal, unlawful, criminal, banned activities or (d) violating any domestic and international laws or regulations.
Escrow Account
2.15 The Company has engaged the Payment Service Providers to provide Escrow Payment service.
2.16 Payment Service Providers operate and maintain Escrow Accounts to hold Escrow Amounts.
2.17 All Escrow Accounts are domiciled in Europe and are denominated in Invoice Currency.
2.18 Neither the Buyers nor the Sellers can directly access (a) the Escrow Accounts, or (b) the Escrow Amounts.
2.19 The Payment Service Providers perform the collection of the Escrow Amounts from the Buyers, hold the Escrow Amounts in the Escrow Accounts, and disburse Escrow Amounts to the Sellers (or refunds to Buyers) based on the instructions of the Company.
2.20 The terms and conditions of Escrow Payment service provided by the Payment Service Providers are incorporated in Escrow Terms and Conditions by reference, including the integration of their services with the services of the Company, the contractual relationship between them and the Company, and ***the terms and conditions of the Payment Service Providers*** (“PSP Terms and Conditions”).
2.21 You expressly acknowledge that you have read the PSP Terms and Conditions and accept that these PSP Terms and Conditions (a) constitute a legal, valid, and binding agreement between you and Payment Service Providers within the framework of the contractual relationship between you and the Company (b) are an integral part of the Escrow Terms and Conditions.
Escrow Cancellation
2.22 You can cancel an Escrow Proposal at any time prior to your Counterparty’s acceptance.
2.23 You can reject an Escrow Proposal sent to you by your Counterparty.
2.24 You can cancel or request the Company to cancel an Escrow Agreement at any time prior to the Shipment Date with the consent of your Counterparty.
2.25 If the Buyer fails to deposit the Escrow Amount in the Escrow Account within seven (7) days of acceptance of Escrow Proposal, the Escrow Agreement is automatically cancelled.
2.26 All cancellations are effective immediately.
2.27 An Escrow Agreement cannot be cancelled once the Seller has uploaded the Proof of Shipment and triggered the Verification Process.Escrow Amendment
2.28 You can amend or request the Company to amendment an Escrow Agreement at any time prior to the Shipment Date with the consent of your Counterparty.
2.29 All cancellations are effective immediately.Deposit of Funds
2.30 Upon the acceptance of an Escrow Proposal, Tulyp.io notifies the Buyer to deposit the Escrow Amount and Escrow Fee (if any) in the Escrow Account.
2.31 If you are the Buyer, you must deposit the Escrow Amount and Escrow Fee (if applicable) in the Escrow Account within seven (7) days of the acceptance of the Escrow Proposal.
2.32 Tulyp.io provides onscreen instructions to the Buyer to make the payment. Currencies and payment methods available to the Buyer may vary depending on its domicile. Tulyp.io may offer multiple payment methods and currencies to the Buyer to choose from.
2.33 Tulyp.io may set different limits for Escrow Amount for different payment methods.
2.34 Once the Buyer has funded the Escrow Account and the Company has received the Escrow Amount in the Escrow Account, the Escrow Account balance is reflected on screen on both Buyer and Seller dashboards and both parties are notified. There may be a time lag between the Buyer’s funding and when the Escrow Amount is reflected in Escrow Account balance on Buyer and Seller dashboards, due to inherent delays in cross border funds transfer.
2.35 Escrow Amount does not earn any interest.
3. Escrow fee & Currency conversion
Escrow Fee
3.1 The Escrow Fee can be paid by the Buyer, the Seller or split between them. The party creating the Escrow Proposal can choose the relevant option.
3.2 Where the Escrow Fee is paid by the Buyer, the Escrow Fee shall be added to the amount of funds the Buyer is required to pay into the Escrow Account.
3.3 Where the Escrow Fee is to be paid by the Seller, the Escrow Fee shall be deducted from the Escrow Amount prior to the disbursement to the Seller.
3.4 Where the Escrow Fee is split between the Buyer and the Seller:the portion of the Escrow Fee payable by the Buyer is added to the amount to be paid by the Buyer into the Escrow Account; andthe Escrow Fee payable by the Seller shall be deducted from the relevant Escrow Amount under the Escrow Agreement prior to the disbursement to the Seller.
Currency Conversion
3.5 Where you are the Buyer, you may pay the Escrow Amount and any Escrow Fee into the Escrow Account in the national currency of your domicile (“Buyer Currency”) or USD.
3.6 Where you are the Seller, you may receive the Escrow Amount (less any Escrow Fee) in the national currency of your domicile (“Seller Currency”) or USD.
3.7 Where the Buyer Currency is different from the Invoice Currency, the payment by the Buyer is subject to a currency conversion (“Currency Conversion”). Same applies to the Seller if the Seller Currency is different from the Invoice Currency.
3.8 When a Currency Conversion is involved, Tulyp.io shall display an indicative foreign exchange rate (“Indicative Rate”) at the time Escrow Proposal creation and acceptance.
3.9 The Indicative Rate reflects only the prevailing foreign exchange rate at the time of display. The Company shall update the foreign exchange rate, display the final applicable exchange rate on screen and apply it for Currency Conversion when collecting the payment from the Buyer and making the payment to the Seller (as applicable).
4. Escrow Term
4.1 Tulyp.io shall hold the Escrow Amount for a maximum 180 calendar days (“Escrow Term”) from the date of receiving the Escrow Amount in the Escrow Account. Notwithstanding, where an Escrow Agreement is the subject of a Dispute between the Buyer and Seller during the Escrow Term, the following process will apply:prior to the expiry of the Escrow Term, if the Dispute Parties have not initiated the External Arbitration proceedings or have not notified the Company about the commencement of External Arbitration proceedings then the Company shall refund the Escrow Amount to the Buyer on the next business day of the expiry of Escrow Term after deducting applicable Escrow Fee and Currency Conversion costs; and prior to the expiry of the Escrow Term, if the Dispute Parties have initiated the External Arbitration proceedings and have notified the Company about the commencement of External Arbitration proceedings, then the Company shall continue to hold the Escrow Amount in the Escrow Account until the conclusion of the External Arbitration proceedings and receipt of the full details of the arbitration outcome and the disburse it after deducting applicable Escrow Fee and Currency Conversion costs.
5. Escrow Release & RefundEscrow Release & Refund
5.1 If you are the Seller, you must upload the Proof of Shipment on or before the Shipment Date to trigger the Proof of Shipment verification (“Verification Process”) by the Company.
5.2 The Company endeavors to complete the Verification Process in 48 hours (“Review Period”).
5.3 If the Proof of Shipment meets the Escrow Release Conditions, then the Company shall instruct the Payment Service Providers to immediately transfer the applicable Escrow Amount to you after deducting applicable Escrow Fee and Currency Conversion costs.
5.4 The Company, at the minimum, requires the Proof of Shipment documents to prove the following aspects of the Transaction clearly and unambiguously:proof of value- industry standard documents providing sufficient information about the commercial value of the Products & Services such as final invoice/purchase order, sale and purchase agreement, software license agreement, service agreement, or other documents acceptable to Tulyp.io.proof of transfer – industry standard documents providing sufficient information about the delivery or acceptance arrangement of the Product & Services, such as bill of lading, waybill, proof of transfer of digital goods, proof of service delivery, or other documents acceptable to Tulyp.io.proof of quantity – industry standard documents providing sufficient information about the quantity of Products & Services such as packing list, inspection report, installation report, itemized list, official logs, or other documents acceptable to the Company.
5.5 Tulyp.io allows the Buyer and the Seller to add (a) more items to Proof of Shipment such as certificate of origin, inspection report etc, and (b) the Buyer’s explicit written consent document (“Buyer Consent”) to release the Escrow Amount to the Seller. You are required to provide these documents in addition to the Proof of Shipment to trigger the Verification Process.
5.6 There is no limit on the number of documents you can provide as Proof of Shipment.
5.7 You must upload all Proof of Shipment in accordance with the relevant Escrow Agreement to trigger the Proof of Shipment verification (“Verification Process”) by the Company.
5.8 The Company has the right to :ask you to provide explanation, clarification, and information to scrutinize the Proof of Shipment and complete the Verification Process.directly contact the Buyer to verify the Buyer Consent.directly contact your Counterparty to verify requests for amendment or cancellation of the relevant Escrow Agreement.extend such Review Period for as long as the Company, at its sole discretion, to conduct the Verification Process adequately and accurately.
5.9 You as the Seller shall be deemed to have failed to meet the Escrow Payment Release Condition if:you do not trigger the Verification Process by the Shipment Date;the authenticity of the Proof of Shipment cannot be reasonably established;the Company has reasons to believe that the Proof of Shipment are fraudulent;you fail to respond to the Company’s request for explanation, clarification, and information to scrutinize the Proof of Shipment and complete the Verification Process within a reasonable timeframe; and/orthe Buyer denies issuing the Buyer Consent.
5.10 When the Escrow Payment Release Condition is not met, the Company shall notify the Buyer and the Seller and allow the Buyer to claim a refund of the Escrow Amount.
Shipment Date Extension
5.11 Where you are the Seller, you can request a one – time extension of the Shipment Date any time before the Shipment Date (“Extension Request”) and the Company shall immediately notify the Buyer of the Extension Request.
5.12 Where the Buyer accepts an Extension Request, the Company shall revise the Shipment Date as agreed by the Buyer (“Extended Shipment Date”) and the Extended Shipment Date shall become binding on you. If the Buyer rejects the Extension Request, then you must complete the upload of Proof of Shipment by the Shipment Date.
Seller Fraud
5.13 Where you are the Buyer, you can claim a refund of the Escrow Amount from the Company if the Company released the Escrow Amount to the Seller based on fraudulent Proof of Shipment and supporting documents provided by the Seller.
5.14 You cannot claim a refund if the Company released the Escrow Amount to the Seller based on the Buyer Consent provided by you.
5.15 The Company has the right to ask you for documents to establish Seller fraud and an undertaking that you did not receive the Product & Services.Escrow Refund
5.16 Where you are the Buyer and eligible for refund, you must submit a refund request (“Refund Request”) to claim the Escrow Amount.
5.17 Upon receipt of a Refund Request, the Company will notify the relevant Seller of such Refund Request and process the Refund Request within two (2) Business Days and transfer the Escrow Amount to you after deducting applicable Escrow Fee and Currency Conversion costs.
6. Escrow Agreement Disputes & ResolutionStep 1: Raising an Escrow Agreement Dispute
6.1 Where you are the Buyer, you can raise an Escrow Agreement Dispute on Tulyp.io for determination by the Company (the party raising the dispute, the “Disputing Party” and the Counterparty, the “Dispute Counterparty” and collectively, the “Dispute Parties”).
6.2 You must raise the Escrow Agreement Dispute on Tulyp.io within ten (10) business days of the occurrence of event (s) causing the Escrow Agreement Dispute for the Company to accept the Escrow Agreement Dispute.
6.3 Following disputes are not Escrow Agreement Disputes:Dispute in relation to Tulyp.io’s services. These are governed under the General Terms and Conditions and Escrow Terms and Conditions.Dispute in relation to the provision and availability of services of Payment Service Provider in relation to the Escrow Account. Those are governed by PSP Terms and Conditions.
6.4 A Disputing Party must select from the following dispute categories (“Dispute Categories”) when raising an Escrow Agreement Dispute:(a) Shipment Delay – where the Seller was unable ship the Products & Services by the Shipment Date and the Buyer does not accept the Extension Request.(b) Insufficient Documents – where the Seller is unable to provide Proof of Shipment.(c) Inspection Fail – where the Products & Services do not meet the physical inspection, digital verification, service quality or outcome requirements set in the Escrow Agreement.(d) Items not Received – where the Buyer does not receive the Products & Services following the release of Escrow Amount.(e) Others – any other issue.
6.5 The Disputing Party must provide all the supporting evidence to explain the cause of the Escrow Agreement Dispute such as documents, screen shots, pictures, videos and copies of electronic communications (“Dispute Evidence”).The Company may require you to provide additional information to ensure completeness of Dispute Evidence to accept the Escrow Agreement Dispute
6.6 Once the Company accepts the Escrow Agreement Dispute, the Company shall notify the Dispute Counterparty (“Dispute Notice”) along with the Dispute Evidence.
6.7 Where you are the Dispute Counterparty, you must respond within seven (7) Business Days of receiving the Dispute Notice (“Notice Period”).During the Notice Period, you can(a) accept the Escrow Agreement Dispute, or (b) reject the Escrow Agreement Dispute and provide evidence, such as documents, screen shots, pictures, videos and copies of electronic communications (“Counterparty Dispute Evidence”).The Company may require you to provide additional information to ensure completeness of Counterparty Dispute Evidence.
6.8 As the Dispute Counterparty, if you fail to respond to a Dispute Notice within the Notice Period, then you are deemed to have accepted the Dispute Evidence. The Company shall refund the Escrow Amount after deducting applicable Escrow Fee and Currency Conversion costs to the Disputing Party within one (1) Business Day from the end of Notice Period.
Step 2: Resolution by Negotiation
6.9 If you, as the Dispute Counterparty, respond to the Dispute Notice within the Notice Period, the Company shall notify the Disputing Party providing the Counterparty Dispute Evidence, and direct the Disputing Parties to engage in a good faith negotiation (“Negotiation”) to resolve the Escrow Agreement Dispute for fifteen(15) Business Days (“Negotiation Period”).
6.10 If the Disputing Parties reach an agreement to resolve an Escrow Agreement Dispute within the Negotiation Period, the Disputing Parties shall provide the details of the official agreement to the Company. The Company shall act in accordance with such agreement within one (1) Business Day of receiving it and close the Escrow Agreement Dispute.**Step 3: Resolution by the Company (if no resolution by negotiation in step 1)**
6.11 Escrow Agreement Dispute in Dispute Categories (a), (b), (c) or (d) are automatically escalated for resolution by the Company (“Decision”) where:any Disputing Party terminates the Negotiation before the conclusion of the Negotiation Period and escalates the Escrow Agreement Dispute to the Company; orNegotiation Period concludes and the Disputing Parties cannot resolve the Escrow Agreement Dispute, in which case the Escrow Agreement Dispute gets automatically escalated to the Company.
6.12 The Company has the right to investigate and take such steps, in its sole discretion, necessary to resolve the Escrow Agreement Dispute to reach the Decision, including:reviewing Dispute Evidence and Counterparty Dispute Evidence,request more information from the Disputing Parties.
6.13 The Company shall provide a Decision within seven (7) Business Days from the date of escalation and carry out such Decision.Step 3.1: Resolution by Arbitration (if no resolution by negotiation in step 1)
6.14 Escrow Agreement Dispute in Dispute Category (e) is resolved by external arbitration (“External Arbitration”) where:any Disputing Party terminates the Negotiation before the conclusion of the Negotiation Period and escalates the Escrow Agreement Dispute to the Company; orNegotiation Period concludes and the Disputing Parties cannot resolve the Escrow Agreement Dispute, in which case the Escrow Agreement Dispute gets automatically escalated to Tulyp.io.
6.15 Currently the Company refers any Escrow Agreement Dispute for resolution by arbitration to France International Arbitration Centre (“CMAP”) in accordance with the Arbitration Rules of the CMAP (“CAP-ACAREF Arbitration Rules”) for the time being in force, the CMAP Rules being deemed to be incorporated by reference in this paragraph.The seat of arbitration shall be France.The arbitration shall be conducted by a single arbitrator and wholly in the English language.You further agree that following the commencement of arbitration, you will attempt in good faith to resolve the Dispute through mediation at the France Centre for Mediation and arbitration (“CMAP”) in accordance with the CAP-ACAREF Arbitration Rules Protocol for the time being in force.The Company shall notify you if your Escrow Agreement Dispute is required to be resolved by a different External Arbitration method.
6.16 Where an Escrow Agreement Dispute is resolved by External Arbitration, the Company acts as per the official decision of the External Arbitration, which you are required to provide to the Company.The Company has the right to independently verify at its discretion.The Company shall carry out the official decision of the External Arbitration within two(2) business days of verification.
6.17 Any costs incurred by the Company arising out of or in connection with referring the Escrow Agreement Dispute to the External Arbitration and carrying out the result of the External Arbitration shall be paid out of the applicable Escrow Amount in priority to any transfer of the Escrow Amount to be made to you or your Counterparty after deducting applicable Escrow Fee and Currency Conversion costs.
7. Compliance, Risk Management
7.1 The Company continuously monitors all Accounts for Compliance and other Risks.
7.2 You are required to meet the Company’s Compliance requirements at all times.
7.3 The Company may ask you to provide such documents and information as the Company, at its sole discretion, deems necessary to monitor Compliance and other Risks.
7.4 to mitigate or prevent Compliance or other Risks, Tulyp.io may (a) require you to place a reserve with Tulyp.io, (b) suspend your Account and block your funds available with Tulyp.io, (c) suspend or deny the Escrow Service to you (d) and take any necessary action,
7.5 the Company may block the processing of your Escrow Agreement at any time where it has reasons to believe that (a) there is a Compliance violation, (b) the funds in the Escrow Account does not belong to the Buyer, (c) the Buyer in the Escrow Agreement is not a party to the Transaction, (d) the Seller in the Escrow Agreement is not a Party to the Transaction, (e) there is a high risk of Chargeback or Fraud in the Transaction and (f) there is a violation of applicable laws and regulations. The Company shall take additional actions as appropriate in such situations under applicable law and regulations.
8. Disclaimers
8.1 To the maximum extent permitted by any applicable law, the Company makes no warranty of any kind, whether express, implied, statutory or otherwise, regarding any matter, and specifically disclaims all implied warranties, including without limitation any implied warranty of merchantability, fitness for a particular use or purpose, accuracy of informational content, systems integration, non-interference with enjoyment, non-infringement of third party rights, results to be derived from the use of or integration with the Escrow Service.
8.2 The Escrow Service is exclusive of any warranty.
8.3 The Company does not make any warranty that the Escrow Service will be error free or uninterrupted. The Escrow Service may be subject to limitations, delays, and other issues inherent in the use of the internet and the type of technology that the Company and/or the Payment Service Providers may use.
8.4 While the Company shall make the best efforts to instruct the Payment Service Providers to immediately release the Escrow Amount when due to the Seller (or Buyer in case of a refund), there may be delays in the funds reaching your account due to (a) dependency on the Payment Service Providers, (b) Compliance reasons, (c) Force Majeure or (d) Technical Breakdown.
9. LIABILITIES & INDEMNIFICATION
9.1 You agree that you solely bear all risks from your use of the Escrow Service without any recourse whatsoever to the Company.
9.2 Where you are the Seller, you are liable to the Company for Chargeback and Fraud.
9.3 You shall indemnify, defend, save and hold harmless the Company, its Relevant Persons and affiliates from Losses and Claims due to your violation of the Escrow Terms and Conditions.
9.4 The Company, and its Relevant Persons and affiliates shall not be liable to you for any Losses or Claims arising frompersonal injury or property damage, of any nature whatsoever, resulting from use of the Escrow Serviceevents outside the Company’s control such as but not limited to (i) Force Majeure; (ii) Technical Breakdown, (iii) software bugs, errors, inaccuracies, or omissions or (iv) conduct of any Service Provider or third partythe Company’s Decision in a Disputethe Company’s Verification Processany delay in receiving Escrow Amount due to Compliance or dependency on Payment Service ProvidersCurrency Conversionpayment of Escrow Feeyour violation of materials terms of the Agreementgross negligence, wilful misconduct or Fraud by youthe exercise of the Company’s rights under the Escrow Terms and Conditionsnon delivery of Products & Servicesissues with the quality, quantity or specification of the Products & Servicesdamage to the Products & Services
10. VARIATION & TERMINATION
10.1 The Company at its sole discretion may amend, revise or restate Escrow Terms and Conditions. You shall be presumed to have accepted any such amendment. After the relevant amendment, you will be able to access the amended Escrow Terms and Conditions on your dashboard.
10.2 The Company may vary Escrow Fee depending on the nature of the Transaction and associated Risks.
10.3 The Payment Service Providers at their sole discretion may amend, revise or restate the PSP Terms and Conditions. You shall be presumed to have accepted any such amendment. After the relevant amendment, you will be able to access the amended PSP Terms and Conditions on your dashboard.
10.4 The Company may change the Payment Service Providers or distribute different parts of an Escrow Payment among more than one Payment Service Providers.
10.5 The Company may vary (a) the domicile of Escrow Accounts, (b) available Invoice Currencies, (c) currencies and payment methods available for the Buyer and (d) currencies in which the Seller can receive the Escrow Amount.
10.6 The Company may delegate a part or whole of the Escrow Service to its subsidiaries and affiliates or cause its subsidiaries and affiliates to delegate a part or whole of the Escrow Service to the Company.
10.7 The Company may terminate your Account in the following situations:the Company determines that you or your Transactions pose significant Risk;it becomes illegal for the Company or the Payment Service Providers to provide the Escrow Service to you;there is a violation or possible violation by you of the General Terms and Conditions, Escrow Terms and Conditions or PSP Terms and Conditions.
11. USER ACKNOWLEDGEMENTS
11.1 You acknowledge and agree that:(a) The Company is not a party to the Escrow Agreement. The only two parties to the Escrow Agreement are you and your Counterparty.(b) the Company is not responsible for the handling or delivery of Products & Services.(c) the Company may demand and you shall provide additional documents:during the Verification Processafter the release of Escrow Amountat any time for Compliance and other Risks assessmentthe Company may share any information provided by you with parties it is contractually or legally obligated to share, such as (but not limited to):any governmental or regulatory body properly exercising its powers.Service Providers.
11.2 Where you are the Seller, you expressly acknowledge and agree that you are responsible for arranging the shipment and delivery of the Products & Services and providing the Proof of Shipment or Buyer Consent to the Company.
11.3 Where you are the Buyer, you expressly acknowledge and agree that the Company is not responsible for:non delivery of Products & Servicesissues with the quality, quantity, or specification of the Products & Servicesdamages to the Products & Services
11.4 Where you are one of the Dispute Parties in a Dispute, you acknowledge and agree that:the Company has the right to verify the agreement reached by the Disputing Parties and may ask you for more information and documents.(b) the Company shall not accept agreements that:are in violation of General Terms and Conditions, Escrow Terms and Conditions, PSP Terms and Conditions or applicable laws.cause Losses to or Claims on the Company.(c) the Company has the authority to investigate the Escrow Agreement Dispute and take such steps as the Company, in its sole discretion, deems necessary to resolve the Escrow Agreement Dispute and reach a Decision, including:reviewing Dispute Evidence and Counterparty Dispute Evidence.contact you and request for more information from you.you shall fully cooperate with the Company.any Decision is final and binding on you and that you expressly waive any rights to challenge the Decision, whether in a court of competent jurisdiction or otherwise.you waive your right to bring any claim or subsequent claims against the Company (whether in a court of competent jurisdiction or otherwise) in making such Decision.any costs incurred by the Company arising from the Decision shall be paid out of the Escrow Amount prior to the payment to you or your Counterparty.
11.5 Where you are a party to an External Arbitration, you expressly acknowledge and agree:that the decision of the External Arbitration shall be final and binding on you.to waive your right to bring any claim or subsequent claims against the Company in carrying out the result of the External Arbitration.
11.6 You warrant that the information provided by you to the Company:are complete, true and accurate in all respects at all times.where applicable, is provided within reasonable time.is not false, misleading or deceptive in any respect at all times.does not omit anything that affects or is likely to affect the meaning or significance of such documents or information in any respect at all times.
12. NOTICES AND COMMUNICATION BETWEEN PARTIES
12.1 Any communication between you and the Company shall be in accordance with the General Terms and Conditions.
12.2 Any communication between you and your Counterparty shall be in accordance with the terms and details provided in relation to such Escrow Agreement.
13. ASSIGNMENT
13.1 The Company may, at any time, assign or otherwise transfer any or all of its rights and obligations under the Escrow Terms and Conditions without restriction.
13.2 You may not assign, mortgage, charge or otherwise transfer any of your rights and obligations under the Escrow Terms and Conditions without the prior written consent of the Company and your Counterparty. Any attempted assignment of mortgage, charge or otherwise transfer in violation of the Escrow Terms and Conditions shall be null and void.
14. SEVERABILITY
If any provision of the Escrow Terms and Conditions or part thereof is rendered void, invalid, illegal or unenforceable by any legislation to which it is subject or by a decision of a court of competent jurisdiction (“Affected Provision”), the Affected Provision shall be rendered void, invalid, illegal or unenforceable only to that extent and it shall in no way affect or prejudice the enforceability of the remainder of the Affected Provision or the other provisions of the Escrow Terms and Conditions.
15. TRANSLATIONIf the Escrow Terms and Conditions is translated into a language other than the English language and any conflict or inconsistency between such translation and the English text arises, then the English text shall prevail.
16. RIGHTS OF THIRD PARTIESAny person who is not a party to a Escrow Agreement shall have no right under the relevant Escrow Agreement or any part thereof, regardless of whether such person has been identified by name, as a member of a class or as answering a particular description in the relevant Escrow Agreement. This clause shall not affect the rights of any permitted assignee or transferee under the Escrow Agreement.
17. GOVERNING LAW
17.1 The Escrow Terms and Conditions shall be governed by, construed under and enforced in accordance with the laws of France.
17.2 In the event of any claim, dispute or difference (“Dispute”) that may arise out of or in connection with the terms of the Escrow Terms and Conditions and/or the Company (including any question relating to the existence, validity of termination of the terms of the Escrow Terms and Conditions), you agree to enter into negotiations with the Company in good faith to resolve such Dispute (“Good Faith Negotiations”).
17.3 Where a Dispute is not resolved within thirty (30) days of the commencement of Good Faith Negotiations, the Dispute shall be referred to and finally resolved by arbitration administered by France International Arbitration Centre (“CMAP”) in accordance with the Arbitration Rules of the Arbitration Chamber of Paris (“Rules of the Arbitration Chamber of Paris”) for the time being in force, the Arbitration Chamber of Paris Rules being deemed to be incorporated by reference in this paragraph. The seat of arbitration shall be France. The arbitration shall be conducted by a single arbitrator and wholly in the English language. You further agree that following the commencement of arbitration, you will attempt in good faith to resolve the Dispute through mediation at the Centre for mediation and arbitration in Paris (“CMAP”) in accordance with the CAP-ACAREF Arbitration Rules for the time being in force.
17.4 Any settlement reached in the course of mediation shall be referred to the arbitrator appointed by the CMAP and may be made a consent award on agreed terms.Any decision or award made by an arbitrator in accordance with the Escrow Terms and Conditions shall be final and binding on the parties to such arbitration and the parties to such arbitration expressly waive their rights to appeal any such decision and/or award.
1. GENERAL1.1 The Company owns and operates Tulyp.io.1.2 You expressly authorize and instruct the Company to act as escrow agent in connection with each Escrow Agreement entered by you subject to the Escrow Terms and Conditions. Tulyp.io expressly agrees to act as an escrow agent in connection with each Escrow Agreement entered by you subject to the Escrow Terms and Conditions.1.3 You expressly appoint the Company to act as the merchant of record for the purposes of collecting, holding, disbursing, or remitting the Escrow Amount (as defined in the relevant Escrow Agreement) domestically or internationally, as well as currency conversion and associated services.1.4 You should log onto Tulyp.io to verify the details and status of each Escrow Agreement to which you are a party to.1.5 Any reference to time or calendar day in Escrow Terms and Conditions shall be a reference to France Time and a calendar day in France, respectively.1.6 All communications shall be made in the English language.1.7 By using the Escrow Service, you accept the Escrow Terms and Conditions, and you accept to be bound by them.1.8 The General Terms and Conditions of the Company are incorporated into the Escrow Terms and Conditions by way of reference and in the event of any inconsistency between the Escrow Terms and Conditions and the General Terms and Conditions, the terms of the Escrow Terms and Conditions shall prevail.
2. ESCROW MECHANISM
Escrow Agreement
2.1 The Company provides the Escrow Service to all Registered Users of Tulyp.io platform.
2.2 As a Registered User, you can create and send an escrow proposal (“Escrow Proposal”) to your escrow counterparty (“Counterparty”) for acceptance.
2.3 You are required to provide Transaction information when creating an Escrow Proposal, either as on- screen input or documents containing such information as (but not limited to):details of the Products & Servicesdetails of the Counterpartydetails of the shipment and delivery of the Product & Servicesthe conditions to be fulfilled for Tulyp.io to release the Escrow Amount to the Sellercountries where Products & Services(a) originate from, (b) pass through or(c) will be delivered insuch other information as the Company may require to provide the Escrow Service
2.4 You must create and customize Escrow Proposals using the templates provided by Tulyp.io.
2.5 Once you create the Escrow Proposal, you can send it to your Counterparty for acceptance. You can also save it as “draft” without sending it to your Counterparty.
2.6 Tulyp.io notifies your Counterparty and provides instructions to access the Escrow Proposal for acceptance. Your Counterparty’s acceptance is required to create a legally binding Escrow Agreement with you.
2.7 Until your Counterparty’s acceptance, the status of the Escrow Proposal appears on your Tulyp.io dashboard as “pending” or “awaiting confirmation” or with a similar description.
2.8 Any Escrow Proposal that is (i) rejected by your Counterparty or (ii) not accepted within seven (7) days by your Counterparty, is flagged on Tulyp.io dashboard as “expired”.
2.9 Upon acceptance of the Escrow Proposal by your Counterparty, Tulyp.io notifies both parties and updates the Escrow status as “accepted” on your Tulyp.io dashboard.
2.10 Tulyp.io assigns a unique number (“Escrow Number”) to each Escrow Agreement.
2.11 You can create an Escrow Proposal in the role of a Buyer or a Seller.
2.12 Depending on your country of domicile, the Escrow Service may not be available or may limit your role to either only Buyer or only Seller. The Company may also limit (a) the Escrow Amount notional, (b) available Invoice Currencies, (c) currencies and payment methods available for the Buyer and (d) currencies in which the Seller can receive the Escrow Amount. Please read the Country Coverage section.
2.13 The Company allows the use of Escrow Service only for Permitted Products & Services.
2.14 The Company prohibits the use of Escrow Service for (a) Prohibited Industries, (b) Prohibited Countries, (c) illegal, unlawful, criminal, banned activities or (d) violating any domestic and international laws or regulations.
Escrow Account
2.15 The Company has engaged the Payment Service Providers to provide Escrow Payment service.
2.16 Payment Service Providers operate and maintain Escrow Accounts to hold Escrow Amounts.
2.17 All Escrow Accounts are domiciled in Europe and are denominated in Invoice Currency.
2.18 Neither the Buyers nor the Sellers can directly access (a) the Escrow Accounts, or (b) the Escrow Amounts.
2.19 The Payment Service Providers perform the collection of the Escrow Amounts from the Buyers, hold the Escrow Amounts in the Escrow Accounts, and disburse Escrow Amounts to the Sellers (or refunds to Buyers) based on the instructions of the Company.
2.20 The terms and conditions of Escrow Payment service provided by the Payment Service Providers are incorporated in Escrow Terms and Conditions by reference, including the integration of their services with the services of the Company, the contractual relationship between them and the Company, and ***the terms and conditions of the Payment Service Providers*** (“PSP Terms and Conditions”).
2.21 You expressly acknowledge that you have read the PSP Terms and Conditions and accept that these PSP Terms and Conditions (a) constitute a legal, valid, and binding agreement between you and Payment Service Providers within the framework of the contractual relationship between you and the Company (b) are an integral part of the Escrow Terms and Conditions.
Escrow Cancellation
2.22 You can cancel an Escrow Proposal at any time prior to your Counterparty’s acceptance.
2.23 You can reject an Escrow Proposal sent to you by your Counterparty.
2.24 You can cancel or request the Company to cancel an Escrow Agreement at any time prior to the Shipment Date with the consent of your Counterparty.
2.25 If the Buyer fails to deposit the Escrow Amount in the Escrow Account within seven (7) days of acceptance of Escrow Proposal, the Escrow Agreement is automatically cancelled.
2.26 All cancellations are effective immediately.
2.27 An Escrow Agreement cannot be cancelled once the Seller has uploaded the Proof of Shipment and triggered the Verification Process.Escrow Amendment
2.28 You can amend or request the Company to amendment an Escrow Agreement at any time prior to the Shipment Date with the consent of your Counterparty.
2.29 All cancellations are effective immediately.Deposit of Funds
2.30 Upon the acceptance of an Escrow Proposal, Tulyp.io notifies the Buyer to deposit the Escrow Amount and Escrow Fee (if any) in the Escrow Account.
2.31 If you are the Buyer, you must deposit the Escrow Amount and Escrow Fee (if applicable) in the Escrow Account within seven (7) days of the acceptance of the Escrow Proposal.
2.32 Tulyp.io provides onscreen instructions to the Buyer to make the payment. Currencies and payment methods available to the Buyer may vary depending on its domicile. Tulyp.io may offer multiple payment methods and currencies to the Buyer to choose from.
2.33 Tulyp.io may set different limits for Escrow Amount for different payment methods.
2.34 Once the Buyer has funded the Escrow Account and the Company has received the Escrow Amount in the Escrow Account, the Escrow Account balance is reflected on screen on both Buyer and Seller dashboards and both parties are notified. There may be a time lag between the Buyer’s funding and when the Escrow Amount is reflected in Escrow Account balance on Buyer and Seller dashboards, due to inherent delays in cross border funds transfer.
2.35 Escrow Amount does not earn any interest.
3. Escrow fee & Currency conversion
Escrow Fee
3.1 The Escrow Fee can be paid by the Buyer, the Seller or split between them. The party creating the Escrow Proposal can choose the relevant option.
3.2 Where the Escrow Fee is paid by the Buyer, the Escrow Fee shall be added to the amount of funds the Buyer is required to pay into the Escrow Account.
3.3 Where the Escrow Fee is to be paid by the Seller, the Escrow Fee shall be deducted from the Escrow Amount prior to the disbursement to the Seller.
3.4 Where the Escrow Fee is split between the Buyer and the Seller:the portion of the Escrow Fee payable by the Buyer is added to the amount to be paid by the Buyer into the Escrow Account; andthe Escrow Fee payable by the Seller shall be deducted from the relevant Escrow Amount under the Escrow Agreement prior to the disbursement to the Seller.
Currency Conversion
3.5 Where you are the Buyer, you may pay the Escrow Amount and any Escrow Fee into the Escrow Account in the national currency of your domicile (“Buyer Currency”) or USD.
3.6 Where you are the Seller, you may receive the Escrow Amount (less any Escrow Fee) in the national currency of your domicile (“Seller Currency”) or USD.
3.7 Where the Buyer Currency is different from the Invoice Currency, the payment by the Buyer is subject to a currency conversion (“Currency Conversion”). Same applies to the Seller if the Seller Currency is different from the Invoice Currency.
3.8 When a Currency Conversion is involved, Tulyp.io shall display an indicative foreign exchange rate (“Indicative Rate”) at the time Escrow Proposal creation and acceptance.
3.9 The Indicative Rate reflects only the prevailing foreign exchange rate at the time of display. The Company shall update the foreign exchange rate, display the final applicable exchange rate on screen and apply it for Currency Conversion when collecting the payment from the Buyer and making the payment to the Seller (as applicable).
4. Escrow Term
4.1 Tulyp.io shall hold the Escrow Amount for a maximum 180 calendar days (“Escrow Term”) from the date of receiving the Escrow Amount in the Escrow Account. Notwithstanding, where an Escrow Agreement is the subject of a Dispute between the Buyer and Seller during the Escrow Term, the following process will apply:prior to the expiry of the Escrow Term, if the Dispute Parties have not initiated the External Arbitration proceedings or have not notified the Company about the commencement of External Arbitration proceedings then the Company shall refund the Escrow Amount to the Buyer on the next business day of the expiry of Escrow Term after deducting applicable Escrow Fee and Currency Conversion costs; and prior to the expiry of the Escrow Term, if the Dispute Parties have initiated the External Arbitration proceedings and have notified the Company about the commencement of External Arbitration proceedings, then the Company shall continue to hold the Escrow Amount in the Escrow Account until the conclusion of the External Arbitration proceedings and receipt of the full details of the arbitration outcome and the disburse it after deducting applicable Escrow Fee and Currency Conversion costs.
5. Escrow Release & RefundEscrow Release & Refund
5.1 If you are the Seller, you must upload the Proof of Shipment on or before the Shipment Date to trigger the Proof of Shipment verification (“Verification Process”) by the Company.
5.2 The Company endeavors to complete the Verification Process in 48 hours (“Review Period”).
5.3 If the Proof of Shipment meets the Escrow Release Conditions, then the Company shall instruct the Payment Service Providers to immediately transfer the applicable Escrow Amount to you after deducting applicable Escrow Fee and Currency Conversion costs.
5.4 The Company, at the minimum, requires the Proof of Shipment documents to prove the following aspects of the Transaction clearly and unambiguously:proof of value- industry standard documents providing sufficient information about the commercial value of the Products & Services such as final invoice/purchase order, sale and purchase agreement, software license agreement, service agreement, or other documents acceptable to Tulyp.io.proof of transfer – industry standard documents providing sufficient information about the delivery or acceptance arrangement of the Product & Services, such as bill of lading, waybill, proof of transfer of digital goods, proof of service delivery, or other documents acceptable to Tulyp.io.proof of quantity – industry standard documents providing sufficient information about the quantity of Products & Services such as packing list, inspection report, installation report, itemized list, official logs, or other documents acceptable to the Company.
5.5 Tulyp.io allows the Buyer and the Seller to add (a) more items to Proof of Shipment such as certificate of origin, inspection report etc, and (b) the Buyer’s explicit written consent document (“Buyer Consent”) to release the Escrow Amount to the Seller. You are required to provide these documents in addition to the Proof of Shipment to trigger the Verification Process.
5.6 There is no limit on the number of documents you can provide as Proof of Shipment.
5.7 You must upload all Proof of Shipment in accordance with the relevant Escrow Agreement to trigger the Proof of Shipment verification (“Verification Process”) by the Company.
5.8 The Company has the right to :ask you to provide explanation, clarification, and information to scrutinize the Proof of Shipment and complete the Verification Process.directly contact the Buyer to verify the Buyer Consent.directly contact your Counterparty to verify requests for amendment or cancellation of the relevant Escrow Agreement.extend such Review Period for as long as the Company, at its sole discretion, to conduct the Verification Process adequately and accurately.
5.9 You as the Seller shall be deemed to have failed to meet the Escrow Payment Release Condition if:you do not trigger the Verification Process by the Shipment Date;the authenticity of the Proof of Shipment cannot be reasonably established;the Company has reasons to believe that the Proof of Shipment are fraudulent;you fail to respond to the Company’s request for explanation, clarification, and information to scrutinize the Proof of Shipment and complete the Verification Process within a reasonable timeframe; and/orthe Buyer denies issuing the Buyer Consent.
5.10 When the Escrow Payment Release Condition is not met, the Company shall notify the Buyer and the Seller and allow the Buyer to claim a refund of the Escrow Amount.
Shipment Date Extension
5.11 Where you are the Seller, you can request a one – time extension of the Shipment Date any time before the Shipment Date (“Extension Request”) and the Company shall immediately notify the Buyer of the Extension Request.
5.12 Where the Buyer accepts an Extension Request, the Company shall revise the Shipment Date as agreed by the Buyer (“Extended Shipment Date”) and the Extended Shipment Date shall become binding on you. If the Buyer rejects the Extension Request, then you must complete the upload of Proof of Shipment by the Shipment Date.
Seller Fraud
5.13 Where you are the Buyer, you can claim a refund of the Escrow Amount from the Company if the Company released the Escrow Amount to the Seller based on fraudulent Proof of Shipment and supporting documents provided by the Seller.
5.14 You cannot claim a refund if the Company released the Escrow Amount to the Seller based on the Buyer Consent provided by you.
5.15 The Company has the right to ask you for documents to establish Seller fraud and an undertaking that you did not receive the Product & Services.Escrow Refund
5.16 Where you are the Buyer and eligible for refund, you must submit a refund request (“Refund Request”) to claim the Escrow Amount.
5.17 Upon receipt of a Refund Request, the Company will notify the relevant Seller of such Refund Request and process the Refund Request within two (2) Business Days and transfer the Escrow Amount to you after deducting applicable Escrow Fee and Currency Conversion costs.
6. Escrow Agreement Disputes & ResolutionStep 1: Raising an Escrow Agreement Dispute
6.1 Where you are the Buyer, you can raise an Escrow Agreement Dispute on Tulyp.io for determination by the Company (the party raising the dispute, the “Disputing Party” and the Counterparty, the “Dispute Counterparty” and collectively, the “Dispute Parties”).
6.2 You must raise the Escrow Agreement Dispute on Tulyp.io within ten (10) business days of the occurrence of event (s) causing the Escrow Agreement Dispute for the Company to accept the Escrow Agreement Dispute.
6.3 Following disputes are not Escrow Agreement Disputes:Dispute in relation to Tulyp.io’s services. These are governed under the General Terms and Conditions and Escrow Terms and Conditions.Dispute in relation to the provision and availability of services of Payment Service Provider in relation to the Escrow Account. Those are governed by PSP Terms and Conditions.
6.4 A Disputing Party must select from the following dispute categories (“Dispute Categories”) when raising an Escrow Agreement Dispute:(a) Shipment Delay – where the Seller was unable ship the Products & Services by the Shipment Date and the Buyer does not accept the Extension Request.(b) Insufficient Documents – where the Seller is unable to provide Proof of Shipment.(c) Inspection Fail – where the Products & Services do not meet the physical inspection, digital verification, service quality or outcome requirements set in the Escrow Agreement.(d) Items not Received – where the Buyer does not receive the Products & Services following the release of Escrow Amount.(e) Others – any other issue.
6.5 The Disputing Party must provide all the supporting evidence to explain the cause of the Escrow Agreement Dispute such as documents, screen shots, pictures, videos and copies of electronic communications (“Dispute Evidence”).The Company may require you to provide additional information to ensure completeness of Dispute Evidence to accept the Escrow Agreement Dispute
6.6 Once the Company accepts the Escrow Agreement Dispute, the Company shall notify the Dispute Counterparty (“Dispute Notice”) along with the Dispute Evidence.
6.7 Where you are the Dispute Counterparty, you must respond within seven (7) Business Days of receiving the Dispute Notice (“Notice Period”).During the Notice Period, you can(a) accept the Escrow Agreement Dispute, or (b) reject the Escrow Agreement Dispute and provide evidence, such as documents, screen shots, pictures, videos and copies of electronic communications (“Counterparty Dispute Evidence”).The Company may require you to provide additional information to ensure completeness of Counterparty Dispute Evidence.
6.8 As the Dispute Counterparty, if you fail to respond to a Dispute Notice within the Notice Period, then you are deemed to have accepted the Dispute Evidence. The Company shall refund the Escrow Amount after deducting applicable Escrow Fee and Currency Conversion costs to the Disputing Party within one (1) Business Day from the end of Notice Period.
Step 2: Resolution by Negotiation
6.9 If you, as the Dispute Counterparty, respond to the Dispute Notice within the Notice Period, the Company shall notify the Disputing Party providing the Counterparty Dispute Evidence, and direct the Disputing Parties to engage in a good faith negotiation (“Negotiation”) to resolve the Escrow Agreement Dispute for fifteen(15) Business Days (“Negotiation Period”).
6.10 If the Disputing Parties reach an agreement to resolve an Escrow Agreement Dispute within the Negotiation Period, the Disputing Parties shall provide the details of the official agreement to the Company. The Company shall act in accordance with such agreement within one (1) Business Day of receiving it and close the Escrow Agreement Dispute.**Step 3: Resolution by the Company (if no resolution by negotiation in step 1)**
6.11 Escrow Agreement Dispute in Dispute Categories (a), (b), (c) or (d) are automatically escalated for resolution by the Company (“Decision”) where:any Disputing Party terminates the Negotiation before the conclusion of the Negotiation Period and escalates the Escrow Agreement Dispute to the Company; orNegotiation Period concludes and the Disputing Parties cannot resolve the Escrow Agreement Dispute, in which case the Escrow Agreement Dispute gets automatically escalated to the Company.
6.12 The Company has the right to investigate and take such steps, in its sole discretion, necessary to resolve the Escrow Agreement Dispute to reach the Decision, including:reviewing Dispute Evidence and Counterparty Dispute Evidence,request more information from the Disputing Parties.
6.13 The Company shall provide a Decision within seven (7) Business Days from the date of escalation and carry out such Decision.Step 3.1: Resolution by Arbitration (if no resolution by negotiation in step 1)
6.14 Escrow Agreement Dispute in Dispute Category (e) is resolved by external arbitration (“External Arbitration”) where:any Disputing Party terminates the Negotiation before the conclusion of the Negotiation Period and escalates the Escrow Agreement Dispute to the Company; orNegotiation Period concludes and the Disputing Parties cannot resolve the Escrow Agreement Dispute, in which case the Escrow Agreement Dispute gets automatically escalated to Tulyp.io.
6.15 Currently the Company refers any Escrow Agreement Dispute for resolution by arbitration to France International Arbitration Centre (“CMAP”) in accordance with the Arbitration Rules of the CMAP (“CAP-ACAREF Arbitration Rules”) for the time being in force, the CMAP Rules being deemed to be incorporated by reference in this paragraph.The seat of arbitration shall be France.The arbitration shall be conducted by a single arbitrator and wholly in the English language.You further agree that following the commencement of arbitration, you will attempt in good faith to resolve the Dispute through mediation at the France Centre for Mediation and arbitration (“CMAP”) in accordance with the CAP-ACAREF Arbitration Rules Protocol for the time being in force.The Company shall notify you if your Escrow Agreement Dispute is required to be resolved by a different External Arbitration method.
6.16 Where an Escrow Agreement Dispute is resolved by External Arbitration, the Company acts as per the official decision of the External Arbitration, which you are required to provide to the Company.The Company has the right to independently verify at its discretion.The Company shall carry out the official decision of the External Arbitration within two(2) business days of verification.
6.17 Any costs incurred by the Company arising out of or in connection with referring the Escrow Agreement Dispute to the External Arbitration and carrying out the result of the External Arbitration shall be paid out of the applicable Escrow Amount in priority to any transfer of the Escrow Amount to be made to you or your Counterparty after deducting applicable Escrow Fee and Currency Conversion costs.
7. Compliance, Risk Management
7.1 The Company continuously monitors all Accounts for Compliance and other Risks.
7.2 You are required to meet the Company’s Compliance requirements at all times.
7.3 The Company may ask you to provide such documents and information as the Company, at its sole discretion, deems necessary to monitor Compliance and other Risks.
7.4 to mitigate or prevent Compliance or other Risks, Tulyp.io may (a) require you to place a reserve with Tulyp.io, (b) suspend your Account and block your funds available with Tulyp.io, (c) suspend or deny the Escrow Service to you (d) and take any necessary action,
7.5 the Company may block the processing of your Escrow Agreement at any time where it has reasons to believe that (a) there is a Compliance violation, (b) the funds in the Escrow Account does not belong to the Buyer, (c) the Buyer in the Escrow Agreement is not a party to the Transaction, (d) the Seller in the Escrow Agreement is not a Party to the Transaction, (e) there is a high risk of Chargeback or Fraud in the Transaction and (f) there is a violation of applicable laws and regulations. The Company shall take additional actions as appropriate in such situations under applicable law and regulations.
8. Disclaimers
8.1 To the maximum extent permitted by any applicable law, the Company makes no warranty of any kind, whether express, implied, statutory or otherwise, regarding any matter, and specifically disclaims all implied warranties, including without limitation any implied warranty of merchantability, fitness for a particular use or purpose, accuracy of informational content, systems integration, non-interference with enjoyment, non-infringement of third party rights, results to be derived from the use of or integration with the Escrow Service.
8.2 The Escrow Service is exclusive of any warranty.
8.3 The Company does not make any warranty that the Escrow Service will be error free or uninterrupted. The Escrow Service may be subject to limitations, delays, and other issues inherent in the use of the internet and the type of technology that the Company and/or the Payment Service Providers may use.
8.4 While the Company shall make the best efforts to instruct the Payment Service Providers to immediately release the Escrow Amount when due to the Seller (or Buyer in case of a refund), there may be delays in the funds reaching your account due to (a) dependency on the Payment Service Providers, (b) Compliance reasons, (c) Force Majeure or (d) Technical Breakdown.
9. LIABILITIES & INDEMNIFICATION
9.1 You agree that you solely bear all risks from your use of the Escrow Service without any recourse whatsoever to the Company.
9.2 Where you are the Seller, you are liable to the Company for Chargeback and Fraud.
9.3 You shall indemnify, defend, save and hold harmless the Company, its Relevant Persons and affiliates from Losses and Claims due to your violation of the Escrow Terms and Conditions.
9.4 The Company, and its Relevant Persons and affiliates shall not be liable to you for any Losses or Claims arising frompersonal injury or property damage, of any nature whatsoever, resulting from use of the Escrow Serviceevents outside the Company’s control such as but not limited to (i) Force Majeure; (ii) Technical Breakdown, (iii) software bugs, errors, inaccuracies, or omissions or (iv) conduct of any Service Provider or third partythe Company’s Decision in a Disputethe Company’s Verification Processany delay in receiving Escrow Amount due to Compliance or dependency on Payment Service ProvidersCurrency Conversionpayment of Escrow Feeyour violation of materials terms of the Agreementgross negligence, wilful misconduct or Fraud by youthe exercise of the Company’s rights under the Escrow Terms and Conditionsnon delivery of Products & Servicesissues with the quality, quantity or specification of the Products & Servicesdamage to the Products & Services
10. VARIATION & TERMINATION
10.1 The Company at its sole discretion may amend, revise or restate Escrow Terms and Conditions. You shall be presumed to have accepted any such amendment. After the relevant amendment, you will be able to access the amended Escrow Terms and Conditions on your dashboard.
10.2 The Company may vary Escrow Fee depending on the nature of the Transaction and associated Risks.
10.3 The Payment Service Providers at their sole discretion may amend, revise or restate the PSP Terms and Conditions. You shall be presumed to have accepted any such amendment. After the relevant amendment, you will be able to access the amended PSP Terms and Conditions on your dashboard.
10.4 The Company may change the Payment Service Providers or distribute different parts of an Escrow Payment among more than one Payment Service Providers.
10.5 The Company may vary (a) the domicile of Escrow Accounts, (b) available Invoice Currencies, (c) currencies and payment methods available for the Buyer and (d) currencies in which the Seller can receive the Escrow Amount.
10.6 The Company may delegate a part or whole of the Escrow Service to its subsidiaries and affiliates or cause its subsidiaries and affiliates to delegate a part or whole of the Escrow Service to the Company.
10.7 The Company may terminate your Account in the following situations:the Company determines that you or your Transactions pose significant Risk;it becomes illegal for the Company or the Payment Service Providers to provide the Escrow Service to you;there is a violation or possible violation by you of the General Terms and Conditions, Escrow Terms and Conditions or PSP Terms and Conditions.
11. USER ACKNOWLEDGEMENTS
11.1 You acknowledge and agree that:(a) The Company is not a party to the Escrow Agreement. The only two parties to the Escrow Agreement are you and your Counterparty.(b) the Company is not responsible for the handling or delivery of Products & Services.(c) the Company may demand and you shall provide additional documents:during the Verification Processafter the release of Escrow Amountat any time for Compliance and other Risks assessmentthe Company may share any information provided by you with parties it is contractually or legally obligated to share, such as (but not limited to):any governmental or regulatory body properly exercising its powers.Service Providers.
11.2 Where you are the Seller, you expressly acknowledge and agree that you are responsible for arranging the shipment and delivery of the Products & Services and providing the Proof of Shipment or Buyer Consent to the Company.
11.3 Where you are the Buyer, you expressly acknowledge and agree that the Company is not responsible for:non delivery of Products & Servicesissues with the quality, quantity, or specification of the Products & Servicesdamages to the Products & Services
11.4 Where you are one of the Dispute Parties in a Dispute, you acknowledge and agree that:the Company has the right to verify the agreement reached by the Disputing Parties and may ask you for more information and documents.(b) the Company shall not accept agreements that:are in violation of General Terms and Conditions, Escrow Terms and Conditions, PSP Terms and Conditions or applicable laws.cause Losses to or Claims on the Company.(c) the Company has the authority to investigate the Escrow Agreement Dispute and take such steps as the Company, in its sole discretion, deems necessary to resolve the Escrow Agreement Dispute and reach a Decision, including:reviewing Dispute Evidence and Counterparty Dispute Evidence.contact you and request for more information from you.you shall fully cooperate with the Company.any Decision is final and binding on you and that you expressly waive any rights to challenge the Decision, whether in a court of competent jurisdiction or otherwise.you waive your right to bring any claim or subsequent claims against the Company (whether in a court of competent jurisdiction or otherwise) in making such Decision.any costs incurred by the Company arising from the Decision shall be paid out of the Escrow Amount prior to the payment to you or your Counterparty.
11.5 Where you are a party to an External Arbitration, you expressly acknowledge and agree:that the decision of the External Arbitration shall be final and binding on you.to waive your right to bring any claim or subsequent claims against the Company in carrying out the result of the External Arbitration.
11.6 You warrant that the information provided by you to the Company:are complete, true and accurate in all respects at all times.where applicable, is provided within reasonable time.is not false, misleading or deceptive in any respect at all times.does not omit anything that affects or is likely to affect the meaning or significance of such documents or information in any respect at all times.
12. NOTICES AND COMMUNICATION BETWEEN PARTIES
12.1 Any communication between you and the Company shall be in accordance with the General Terms and Conditions.
12.2 Any communication between you and your Counterparty shall be in accordance with the terms and details provided in relation to such Escrow Agreement.
13. ASSIGNMENT
13.1 The Company may, at any time, assign or otherwise transfer any or all of its rights and obligations under the Escrow Terms and Conditions without restriction.
13.2 You may not assign, mortgage, charge or otherwise transfer any of your rights and obligations under the Escrow Terms and Conditions without the prior written consent of the Company and your Counterparty. Any attempted assignment of mortgage, charge or otherwise transfer in violation of the Escrow Terms and Conditions shall be null and void.
14. SEVERABILITY
If any provision of the Escrow Terms and Conditions or part thereof is rendered void, invalid, illegal or unenforceable by any legislation to which it is subject or by a decision of a court of competent jurisdiction (“Affected Provision”), the Affected Provision shall be rendered void, invalid, illegal or unenforceable only to that extent and it shall in no way affect or prejudice the enforceability of the remainder of the Affected Provision or the other provisions of the Escrow Terms and Conditions.
15. TRANSLATIONIf the Escrow Terms and Conditions is translated into a language other than the English language and any conflict or inconsistency between such translation and the English text arises, then the English text shall prevail.
16. RIGHTS OF THIRD PARTIESAny person who is not a party to a Escrow Agreement shall have no right under the relevant Escrow Agreement or any part thereof, regardless of whether such person has been identified by name, as a member of a class or as answering a particular description in the relevant Escrow Agreement. This clause shall not affect the rights of any permitted assignee or transferee under the Escrow Agreement.
17. GOVERNING LAW
17.1 The Escrow Terms and Conditions shall be governed by, construed under and enforced in accordance with the laws of France.
17.2 In the event of any claim, dispute or difference (“Dispute”) that may arise out of or in connection with the terms of the Escrow Terms and Conditions and/or the Company (including any question relating to the existence, validity of termination of the terms of the Escrow Terms and Conditions), you agree to enter into negotiations with the Company in good faith to resolve such Dispute (“Good Faith Negotiations”).
17.3 Where a Dispute is not resolved within thirty (30) days of the commencement of Good Faith Negotiations, the Dispute shall be referred to and finally resolved by arbitration administered by France International Arbitration Centre (“CMAP”) in accordance with the Arbitration Rules of the Arbitration Chamber of Paris (“Rules of the Arbitration Chamber of Paris”) for the time being in force, the Arbitration Chamber of Paris Rules being deemed to be incorporated by reference in this paragraph. The seat of arbitration shall be France. The arbitration shall be conducted by a single arbitrator and wholly in the English language. You further agree that following the commencement of arbitration, you will attempt in good faith to resolve the Dispute through mediation at the Centre for mediation and arbitration in Paris (“CMAP”) in accordance with the CAP-ACAREF Arbitration Rules for the time being in force.
17.4 Any settlement reached in the course of mediation shall be referred to the arbitrator appointed by the CMAP and may be made a consent award on agreed terms.Any decision or award made by an arbitrator in accordance with the Escrow Terms and Conditions shall be final and binding on the parties to such arbitration and the parties to such arbitration expressly waive their rights to appeal any such decision and/or award.
