SERVICES AGREEMENT
This Agreement is entered into as of the date set forth on the “Merchant Authorization Form” form for the acquisition of services provided hereunder in connection with the services provided by Chargeback.com, Inc. This Agreement is made by and between Ethoca Limited (“Ethoca”) and the person or entity acting as merchant pursuant to this Agreement (“Merchant”).  Each of the aforementioned parties is sometimes referred to individually as a “Party” and collectively they will be referred to as the “Parties”.  “Ethoca” shall be deemed to include Ethoca’s authorized representatives, as applicable in this Agreement and in the provision of the Services.
WHEREAS, in the course of Merchant’s business, Merchant is engaged with customers who purchase products and/or services from Merchant and make payments in connection with such purchases using various methods such as credit cards or debit cards;
AND WHEREAS, during the processing of such credit card or debit card transactions in the course of its business, Merchant encounters risk of financial loss on account of certain transactions that are, or appear to be, fraudulent;
AND WHEREAS, Ethoca is in the business of, among other things, aggregating information from various sources related to debit card and credit card transactions for the purpose of evaluating loss-risk, identifying possible fraudulent transactions, and avoiding chargebacks;
AND WHEREAS, Merchant desires to retain Ethoca to provide certain services related to chargeback reduction and fraud prevention.
NOW THEREFORE, IN CONSIDERATION OF the mutual promises contained herein, and other consideration, the sufficiency of which is hereby acknowledged by each of the parties, Ethoca and Merchant agree as follows:

  1. Services and Data Delivery; Marks.

(a)   Ethoca shall perform for Merchant the services set forth under the heading “Scope of Services” in Appendix A attached hereto (“Services”) and Merchant shall provide Data as required to enable the delivery of Services, all as more particularly defined in Appendix A.
(b)    Ethoca will provide and Merchant will accept the Services and certain deliverables that form part of the Services (the “Deliverables”) “as-is” and on an “as available” basis.
(c)  To the extent that Merchant provides Outcome Information to Ethoca in connection with the delivery of the Services, Merchant represents and warrants that: (i) it has the right to disclose, transfer and/or export Outcome Information  pursuant to the terms of this Agreement; (ii) Outcome Information delivered to Ethoca hereunder shall be accurate and complete; (iii) Ethoca shall have the right to use such Outcome Information for the provision of any loss-risk evaluation and loss avoidance activities, which activities include the Services; and, (iv) the provisions of this Agreement do not conflict with those of any agreement with, or representation to, any customer or other third party.
(d)    Merchant is granted a license to use the Deliverables exclusively in accordance with the terms of this Agreement and only for their intended use.  Any breach of this Section 1(d) will be a material breach of this Agreement which, following notice of such breach being delivered to Merchant will immediate terminate this Agreement.
(e)    Merchant grants Ethoca a limited license to use Merchant’s trademarks, logos, service marks and trade names (“Marks”) exclusively in connection with the promotion of the Services and such use shall include advertising, promotion, and publicity of the in connection with the Marks;.  Any use Merchant’s Marks will be in compliance with the most current guidelines for use of its Marks. Any unauthorized modification of or to Marks is expressly prohibited. Neither party shall acquire any rights in Marks of the other nor will it act to impair the rights of the other party in and to such Marks.
(f)     Merchant must not nor permit anyone else to (a) unless otherwise agreed to by the parties, issue a press release or make any other public disclosure relating to this Agreement (including the existence and its terms), (b) disclose Visa as a data source or (c) make any use of Visa’s or its Affiliates’ trademarks, trade names, or service marks or other designations, including, without limitation, in the name of and/or in marketing materials without Visa’s prior written consent.
(g)    If Merchant experiences unauthorized access to any of its facilities or systems pursuant to which it believes or suspects that one or more third parties may have been able to obtain access to Data including through breach, loss, or misdirection, Merchant will, within twenty-four (24) hours, notify Ethoca and:  (a) provide Ethoca with all available information regarding the nature and scope of such unauthorized access; and (b) fully cooperate with Ethoca or its suppliers in Ethoca’s or its supplier’s handling of such matter, including without limitation cooperation with regard to any investigation, reporting and other obligations required by Applicable Law.  In this regard, subject to applicable law, Merchant will not provide any notice or communication regarding unauthorized access to Confirmed Fraud Data to any governmental, law enforcement or other third party until Ethoca or its suppliers have had an opportunity to review and approve such notice or communication.
(h) Nothing in this Agreement shall oblige Ethoca or its suppliers to continue to provide Services to merchant.

  1. Fee for Services. Merchant shall pay Ethoca for Services in accordance with the schedule set forth in Appendix B attached hereto.

 

  1. Invoicing and Payment. Merchant shall pay the amounts payable to Ethoca hereunder within thirty (30) business days of the date of invoices submitted by Ethoca.  Invoices shall be sent monthly.

 
(a)   All information, whether oral or written or via computer disk or electronic media, to which a party is given access or which is made available to a party and is expressly identified as “confidential” is referred to hereinafter as “Confidential Information.” Confidential Information shall include, without limitation, all technology, know-how, processes, software, databases, trade secrets, contracts, proprietary information, all historical and financial information, business strategies, operating data and organizational and cost structures, product descriptions, pricing information, and customer or consumer information (including, but is not limited to, names, addresses, telephone numbers, account numbers, demographic, financial and transactional information or customer lists and nonpublic personal information of consumers (“Customer Information”)), whether received before or after the date hereof. Confidential Information also includes information of any parent, subsidiary or affiliate of the parties.  For greater certainty, Customer Information forms part of Confidential Information.
(b)  Except as expressly provided below or with the disclosing party’s prior written consent, the receiving party agrees that it will hold all Confidential Information of the disclosing party in confidence, and that it will not disclose any Confidential Information of the disclosing party to any third party.  The receiving party shall have appropriate policies and procedures to (a) ensure the security and confidentiality of the Confidential Information, (b) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information, (c) protect against unauthorized access to or use of such Confidential Information that could result in harm or inconvenience to the disclosing party or its customers, and (d) ensure the proper disposal of such Confidential Information as may be required by applicable law.  The receiving party shall notify the disclosing party immediately should there be any unauthorized disclosure of the Confidential Information or should there be any unauthorized access to any computer network or system containing the Confidential Information and this obligation shall survive termination of the Agreement.
(c) A receiving party may disclose Confidential Information pursuant to a requirement or request of a governmental agency or pursuant to a court or administrative subpoena, order or other such legal process or requirement of law, or in defense of any claims or causes of action asserted against it; provided, however, that it shall (a) first notify the disclosing party of such request or requirement or use in defense of a claim, unless such notice is prohibited by statute, rule or court order, (b) attempt to obtain the disclosing party’s consent to such disclosure, and (c) in the event consent is not given, agree to permit a motion to quash, or other similar procedural step, to frustrate the production or publication of information.  Nothing herein shall require a party to fail to honor a subpoena, court or administrative order, or any similar binding requirement on a timely basis.
(d) With the exception of Customer Information, which shall be protected in all circumstances, it is understood and agreed that no information shall be deemed to be Confidential Information to the extent it: (a) is or becomes publicly available through no fault of the receiving party; (b) was known prior to its disclosure to the receiving party without any obligation to keep it confidential as evidenced by tangible records kept by the receiving party in the ordinary course of business; or (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information

 

  1. Term and Termination.

(a)   The term of this Agreement shall be one (1) year from the date that this Agreement (the “Initial Term”) is executed; provided, however, that this Agreement shall be automatically renewed for additional one (1) year terms (“Renewal Terms”), unless either Party gives the other Party thirty (30) days prior written notice of its intention to terminate this Agreement prior to the conclusion of the Initial Term or any Renewal Term.
(b)   This Agreement will terminate, effective upon delivery of written notice by a party hereto, (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (ii) upon the making of an assignment for the benefit of creditors by the other party, or (iii) upon the dissolution of the other party.

  • Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement if such default continues and is not remedied for a period of thirty (30) days following written notice of default from the party that has been breached.
  • Notwithstanding anything in this Agreement to the contrary, payment obligations under Appendix B of this Agreement shall survive termination of this Agreement.
  1. Disclaimer

(a)    Merchant acknowledges that Ethoca and its suppliers make no representation, warranty, or guarantee, whether express or implied under Applicable Law, of any kind with respect to the Deliverables, and that Ethoca and its suppliers will have no liability to Merchant resulting from Merchant’s use of the Deliverables.  ETHOCA AND ITS SUPPLIERS PROVIDE THE CONFIRMED FRAUD DATA “AS IS” AND EXPRESSLY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND THE CONFIRMED FRAUD DATA, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES AS TO THE ACCURACY, COMPLETENESS OR CURRENTNESS OF ANY CONFIRMED FRAUD DATA, TITLE, MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

  1. Indemnity; Limitation on Liability.
  • EACH PARTY (AN “INDEMNIFYING PARTY”) AGREES TO defend, indemnify, and hold harmless THE OTHER PARTY or its suppliers, CONTRACTORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES AND AFFILIATES (EACH, AN “INDEMNIFIED PARTY”), from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys’ fees (COLLECTIVELY, “CLAIMS”), arising out of or in connection with facts, or alleged facts which, if proven, would constitute a breach by Merchant of any obligations under this Agreement OR THAT ARISE OUT OF THE INDEMNIFYING PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT.
  • Without limiting Ethoca’s available remedies, Merchant agrees to defend, indemnify, and hold harmless Ethoca or its suppliers from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with (A) Merchant’s misuse, unauthorized use, unlawful use, or unauthorized disclosure of the Data, (c) the violation, infringement, or misappropriation of any third-party Intellectual Property Right by Merchant, (d) the misuse or misappropriation of Ethoca’s or its supplier’s trademarks, service marks, trade names, and trade dress. Ethoca will give Merchant prompt written notice of any claim of which it has knowledge, and will provide Merchant with the assistance, information and authority necessary to perform Merchant’s obligations under this Section, provided however, that any failure to provide such notice or assistance will not limit Merchant’s indemnification obligations hereunder except to the extent that Merchant is materially prejudiced by such failure.

(b)   AN INDEMNIFIED PARTY MAY, IN ITS OWN DISCRETION, PARTICIPATE IN THE DEFENSE OF ANY CLAIM INCLUDING USING COUNSEL OF ITS OWN CHOOSING.  SUCH PARTICIPATION SHALL NOT RELIEVE THE INDEMNIFYING PARTY OF ANY OF ITS OBLIGATIONS UNDER THIS SECTION OR THIS AGREEMENT.  THE INDEMNIFYING PARTY SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFIED PARTY, SETTLE ANY CLAIM.

  • NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY) FOR LOST PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY MERCHANT.
  • IN NO EVENT WILL EITHER PARTIES LIABILITY WITH RESPECT TO ANY CLAIM, LOSS OR LIABILITY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS UNDER WHICH ETHOCA RECEIVED HEREUNDER DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE UPON WHICH SUCH CLAIM, LOSS OR LIABILITY ACCRUED. NOTWITHSTANDING, THE PRECEDING LIMITATION SHALL NOT APPLY TO THE FOLLOWING ACTS, OMISSIONS OR OBLIGATIONS OF THE PARTIES: (I) A BREACH OF THE LICENSE OBLIGATIONS UNDER SECTION 1 (d); (II) A BREACH OF CONFIDENTIALITY UNDER SECTION 4; AND/OR (IV) A BREACH OF AN INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.
  1. Remedies.  Merchant acknowledges that any breach of the licenses provided to Merchant will give rise to continuing irreparable injury to Ethoca and its suppliers inadequately compensable in damages at law and, without prejudice to any other remedy available to Ethoca and its suppliers, will entitle Ethoca and its suppliers to injunctive relief without the requirement of posting any bond.
  1. Audit Rights.  Merchant will allow Ethoca or its designated agent access during normal business hours throughout the term of this Agreement and for three (3) years thereafter to perform audits of Merchant’s facilities, operations and applicable business records to ensure Merchant’s compliance with this Agreement, including compliance with the security obligations referenced in Appendix A and termination requirements in Section 5.  Merchant will also provide, at Ethoca’s reasonable request, to Ethoca during normal business hours with books, records, and supporting documentation adequate to evaluate Merchant’s performance.  Similarly, Ethoca may monitor Merchant’s use of Data (defined in Appendix A).  Ethoca reserves the right, in its sole discretion, to immediately suspend Merchant’s use of the Data in the event of any suspected or actual violation of the terms of this Agreement.  Without limiting Ethoca’s available remedies, in the event an audit reveals that Merchant is not in compliance with the terms and conditions of this Agreement, Merchant will be responsible for the costs of the audit.
  1. Complete Agreement. This Agreement and the Appendices attached hereto, contain the entire Agreement between the parties hereto with respect to the matters covered herein.  No other Agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Ethoca by any of its salesmen, personnel or agents, or contained in any of its sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof.  Merchant acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein.
  1. Severability. If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
  1. Notices. Any notice in connection with the subject matter of this Agreement shall be in writing and shall be effective when delivered personally or by email to the party for whom intended, or five (5) days following the deposit of the same into the mail, certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below its signature to this Agreement.  Either party may designate a different address by notice to the other given in accordance herein.
  1. Assignment. This Agreement may not be assigned or otherwise transferred by either party to third parties without prior written consent of the other party, other than (a) to affiliates that have effective control over, or are effectively controlled by, the assigning party, and (b) in the event of a sale of all or substantially all of the assets of a party hereto or a sale of the voting securities of a party hereto the result of which is a change in the majority control of such party. Except as provided in the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the heirs, successors, assigns, subcontractors, and delegates of the parties hereto.
  1. Taxes. There shall be added to any charges payable by Merchant under this Agreement amounts equal to any and all applicable taxes, however designated, levied or based on any charges payable under this Agreement or the services rendered hereunder, including without limitation state and local privilege, excise, sales, and use taxes and any taxes or amounts in lieu thereof paid or payable by Ethoca, but excluding taxes based upon the net income of Ethoca.  Merchant shall be billed by Ethoca before or within a reasonable time following payment of such taxes by Ethoca, and such amounts shall be due and payable by Merchant promptly following billing thereof, whether or not such billing occurs following completion of the Services hereunder.
  1. Force Majeure. The performance by Ethoca of Services hereunder shall at all times be subject to delay and/or extension on account of circumstances beyond the control of Ethoca, including without limitation the unavailability of computer time and required materials and any sickness or other unavailability of any of Ethoca’s technical staff assigned to the performance of Services.
  1. Additional Services. Upon the oral or written request of Merchant, Ethoca may undertake, at its discretion, to perform services which add to or extend beyond the Scope of Services designated in Appendix A attached hereto.  In such event, Ethoca may take all reasonable action and expend reasonable amounts of time in accordance with Merchant’s request for such services and Merchant agrees that, except as may be hereafter specifically agreed upon by the parties hereto, the performance by Ethoca of such additional or other services shall be governed by the terms and provisions of this Agreement.
  1. Appendices. The Appendices that are attached hereto are incorporated herein by reference and form part of this Agreement. In the event of any conflict between the provisions of this Agreement and any of the provisions set forth in the Appendices referred to above, the provisions of this Agreement shall govern.

 

  1. Governing Law; Compliance. This Agreement shall be governed by the laws of the State of New York, without regard to its conflicts of laws provisions. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in New York.  Each of the parties agrees to comply with all applicable federal, state and municipal laws, rules, regulations and ordinances governing or relating to privacy rights in connection with the information delivered or received in connection with the Service and in the performance of obligations under this Agreement.

APPENDIX A:  ETHOCA ALERTS SCOPE OF SERVICES

 

Definitions:

For the purposes of this Appendix the following definitions apply:
Alerts: means information on Confirmed Disputed Transactions that Ethoca creates, evaluates or otherwise distributes.
Confirmed Disputed Transaction: means a transaction for a Merchant Identifier for which it is known that the transaction will be disputed by the cardholder.

 

Data: means data relating to Confirmed Disputed Transactions and provided to Merchant as part of the Service.  Data may include the following data elements:

  1. a card or account number, which number may be a cancelled card  number;
  2. merchant descriptor;
  • Authorization date and/or time of transaction;
  1. POS code;
  2. authorization amount; and
  3. any source identifier provided by Participating Issuer to permit tracking of the source of the Data.

 
Merchant Identifier: means the list of Merchant ID’s that Merchant uses in its business as identified to Chargeback.com, Inc. from time to time, and as modified as agreed to by the parties, in writing from time to time.

 

Participating Issuer: means a card issuer that has agreed to provide Ethoca with Data on Confirmed Disputed Transactions.
Outcome Information: means the result of the Alert provided to Merchant which include:  i) the results, as modified from time-to-time, of: Account Suspended, Shipment Stopped, Transaction Refunded, Order Previously Cancelled, Too Late, or Other; ii) the date and time the response; iii) additional optional relevant information about a transaction; and iv) any other commentary as it specifically relates to the outcome of the transaction in the optional free-form field for the provision of such commentary.

Ethoca will provide the following Services:

  1. When provided Data on a Confirmed Disputed Transaction by a Participating Issuer, Ethoca will use appropriate means to create and distribute Alerts based on the Confirmed Disputed Transaction Data to the Merchant. The goal of this communication is to assist in the avoidance of losses attributable to Confirmed Disputed Transactions. Appropriate means of distribution for Alerts shall be agreed to by the Parties and may include, but are not limited to:
  1. Email notification
  2. Internet portal notification; and/or
  • API Interface.
  1. Ethoca will work on its own and alongside Merchant, to expand the base of Participating Issuers.
  1. Ethoca will work with Merchant to develop and support effective means for Merchant to communicate Outcome Information on Confirmed Disputed Transactions to Ethoca.
  1. Ethoca will provide regular reporting to Merchant on effectiveness of the Services.

To facilitate the provision of Services, Merchant:

  1. (a) will only use Data i) for the purpose of avoiding fraud loss on the specific transaction to which the Confirmed Fraud Data relates and ii)  within Merchant’s business on other or future transactions solely within Merchant’s business to which the Data directly relates  for no other purpose; (b) may not use any of the Data as a factor in determining a consumer’s eligibility for credit, insurance, employment or for any purpose identified in section 604(a) of the FCRA (15 U.S.C. § 1681b(a)); (c) must not combine Data with any other data from any third party source, including, without limitation  “consumer report” information as defined in section 603(d) of the FCRA (15 U.S.C. § 1681a(d)); (d)  must maintain the security of  Data in accordance with PCI DSS (as such may be amended) or other standard communicated by Ethoca;(e) must comply with any other requirements or limitations relating to the use of  Data as required by Ethoca from time to time; and (f) must not share any Data with any third party
  1. Represents and warrants that: (a) it has the full legal right and permission to receive the Alerts for the Merchant Identifiers (b) the Confirmed Fraud Data will not be used by Merchant as a factor in determining a consumer’s eligibility for credit, insurance, employment or for any purpose identified in section 604(a) of the FCRA (15 U.S.C. § 1681b(a)); and (c) it will comply with all Applicable Laws in connection with performing its obligations under this Agreement .
  1. will abide by the Terms of Use of the Service as updated on the Ethoca portal from time-to-time.
  1. will use, for Confirmed Disputed Transactions that the Merchant has been provided Data on by Ethoca, the methods agreed to by the parties to deliver timely and accurate Outcome Information back to Ethoca.

References to any Appendix or Schedule should be directed at your Merchant Authorization form.