Terms of Service

Welcome to our website at https://chargeback.com (the “Site”). In this Terms of Service (“Agreement”), “we,” “us,” “our” or “Chargeback.com” means Chargeback.com, Inc., a Delaware corporation. “You,” “your,” “yours” or “Merchant” means the person or entity identified in the Site. This Agreement sets out the terms and conditions under which we provide the Services to you. Please read this Agreement carefully. By clicking “I Agree to the Terms of Service,” registering for an account on the Site or otherwise for the Service, or otherwise using the Site or the Service, you agree to be bound by the terms set for the in this Agreement and to use the Site and the Service in compliance with this Agreement. If you are registering for access to, or otherwise accessing or using, the Site or the Service on behalf of a company or other legal entity, you and such company or entity represent and warrant that (i) you have the right and legal authority to bind such company or entity to this Agreement; (ii) such company or entity is fully aware of, understands, and agrees to be bound by the terms of this Agreement, and (iii) you agree to be bound by this Agreement on behalf of such company or entity. If you do not qualify for the Service, or do not agree to the terms of this Agreement, then you should not and may not register for, access, or use the Site or Service. Your continued use of our Services constitutes a legally binding contract governed by this Agreement.

1. SERVICES

During the Term of this Agreement, you are hereby granted a non-exclusive, non-transferable, limited right to use our Services, so long as you are current in paying all applicable Fees (in accordance with Section 3 below), subject to the terms set forth herein. Each party agrees that it will comply, at its own expense, with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over such matters as applicable to its obligations assumed under this Agreement.

2. DUTIES, DATA SECURITY, COLLECTION, TRANSFER AND RETENTION

2.1 Our Duties.

Subject to the terms and conditions of this Agreement: (i) we will use commercially reasonable efforts to provide the Services in accordance with our Services Standards, which includes such actions as to electronically monitor, retrieve, transmit and timely present Data in compliance with applicable chargeback arbitration procedures using industry standard encryption protocols; (ii) we will upload and use your Data for the sole purpose of populating our systems and performing the Services; and (iii) consistent with the transmission of Data for the purposes contemplated by this Agreement, we will take reasonable steps to segregate and maintain the strict confidentiality of all such Data during and after the term of the Agreement.

2.2 Your Duties.

You will provide us with remote access to Data and to your Applicable Data and Databases (as defined below), and you will maintain and update our database access protocols. Your “Applicable Data and Databases” includes (i) your merchant processing portal, (ii) your payment gateway, (iii) your customer relationship management (CRM) application, to the extent mutually agreed upon as necessary to provide the Services, and (iv) any other databases or applications that we may reasonably request from time to time, to the extent our access to such database or application is reasonably necessary for providing the Services. You agree to authorize your credit card payment processor(s) to provide us with remote access to your credit card payment processing information to the extent that we mutually agree is necessary. You agree that we are not responsible for any errors, omissions, mistakes in and by the Applicable Data and Databases provided to us. Our ability to provide the Services in accordance with the Services Standards is contingent upon receiving accurate and timely Data from the Applicable Data and Databases, and we shall not be liable for any losses or liability if we do not receive such accurate and timely Data. You give us the right to have access into your payment gateway, Chargeback.com Account, and other reasonable methods for obtaining the Data as mutually agreed by the parties, for use in providing Services. You also will give us the right to act in your behalf to communicate with such persons as we mutually agree are necessary to assist in chargeback and retrieval resolution. In the event that we do not have the necessary processor information required, you agree to provide all chargeback notifications to us within a commercially reasonable time period of notification of such chargeback. Such notification must be electronically delivered in a manner directed by us in our current provision of the Services. We shall not be held accountable for any chargeback that is not received or is not delivered to us in a timely manner. We will issue to you, or permit you to use, a user name and password to enable you and/or your employees and agents to access your Chargeback.com Account and to use Services. You will restrict access to such user name, password and Chargeback.com Account information to your employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent accessing and using the Chargeback.com Account complies with all applicable provisions of this Agreement.

2.3 Our Treatment of Data.

We will collect, retain, use and share information and Data collected from you in accordance with applicable laws, and in the provision of the Services. In our use of your Data, we may collect and hold personal or non-public information about you and your customers for the purpose of considering eligibility for Services and for the purpose of providing you with Services. We will use commercially reasonable efforts to safeguard Data transmitted while providing the Services including adhering with all applicable and then-current legal obligations and security measures of any nation, state or governmental authority having jurisdiction over us, including without limitation those issued by the United States, any state and/or municipal authority, Card Association, the United States Federal Trade Commission, PCI DSS and any other applicable governing body, including all applicable laws and regulations governing the collection, retention and use by us of credit card and other financial information. We further agree that we will comply with all of our security protocols, notices and safeguards in effect during the term of this Agreement. We warrant that we have taken such precautions as are commercially reasonable to ensure that your Data is protected from unauthorized disclosure, processing, or use, and that our electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that our system is breached and an unauthorized third party has access to or has accessed Data, we shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify you of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach. In addition to its other obligations hereunder, we agree that your Data shall not be (a) disclosed, sold, assigned, leased or otherwise provided to third parties by us (other than to our affiliates and subcontractors, and then, only in compliance with the requirements for protecting Data set forth in this Agreement and only after obtaining your express permission to do so), or (b) commercially exploited by or on behalf of us, our employees or agents other than in providing the Services. We shall ensure that access to your Data shall be on a “need to know” basis and limited to those parties who need access to such data in order to perform the Services contemplated under this Agreement. We shall require that such parties, including our employees, affiliates and subcontractors, with access to your Data have signed customary written confidentiality agreements with respect to the protection and prohibition on use and disclosure of Data. We shall be responsible for all use of and access to such Data by our affiliates and subcontractors. We shall not make copies of the Data, except as necessary for performance of this Agreement. In the event that we are sending or wish to send the Data to a country other than the country in which the Data was collected, we will obtain prior written approval from you. If we fail to adhere to its obligations under this Section, or if you, in your sole reasonable judgment, believe there has been a breach of security of, or unauthorized access to, or misuse of, the Data, you may, among other things, immediately suspend or permanently withdraw our access to the Data provided under this Agreement. In the event that we are (or to have been) in breach of this Section 2.3, we shall immediately advise you and take steps to remedy such breach and shall cooperate with you in connection with any notifications to affected parties required by law or regulation.

2.4 Your Consent.

You hereby consent, as a condition of your enrollment in and use of Services, to the collection, use, processing and transfer of Data (including Data with respect to your customers) as described in this Section 2.

2.5 Your Compliance.

You shall strictly adhere at all times with all applicable and then-current legal obligations and security measures of any nation, state or governmental authority having jurisdiction over you, including without limitation those issued by the United States, any state and/or municipal authority, Card Association, the United States Federal Trade Commission, PCI DSS and any other applicable governing body, including all applicable laws and regulations governing the collection, retention and use by you of credit card and other financial information. You warrant that you have taken such precautions as are necessary to ensure that your data is protected and that your electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. In the event that your system is breached and an unauthorized third party has access to or has accessed Data, you shall notify the designated parties as required under any applicable laws or industry guidelines and shall immediately notify us of such breach and take such prompt action and precautions as necessary to prevent any continuous or additional breach.

2.6 Accuracy and Retention of Data.

You agree that you are solely responsible for verifying the accuracy and completeness of all Data submitted to us associated with your Chargeback.com Account and verifying that all corresponding funds are accurately processed. We may compile and retain records used or collected by us in the course of providing the Services for you (“Services Data”) and may retain back-ups of such Services Data. In the event that you need or request backup copies of the Services Data, we will use commercially reasonable efforts to provide such Services Data that we may continue to retain at such time subject to (i) your payment of all Fees hereunder and (ii) your payment of our reasonable fees and costs of providing such Services Data to you.

2.7 Issuer Alert Services.

We may employ third parties in the delivery of portions of the Issuer Alerts Services. If you choose to enroll in Issuer Alert Services, you are subject to the additional terms of service detailed at www.chargeback.com/issueralerttermsandconditions. These include time frames for response and the process for refund requests.

3. FEES AND PAYMENTS

3.1 Fees for Services.

You agree to pay to us the Fees associated with each Service on or before the date the Fees are due. Additional Fees may apply for additional services requested by you beyond the Services Standards. Notice of changes will be provided directly to you as provided in this Agreement. We reserve the right to suspend or cancel service in the event of any Fees that remain unpaid for longer than thirty (30) days after the due date. We reserve the right to assign or assume such billing responsibilities to or from an intermediary after reasonable notice to you.

3.2 Invoices.

We shall issue invoices for Fees containing all information specified in this Agreement. All invoices must be in English and contain an invoice number, relevant fee breakdown.

3.3 Payment.

You shall pay undisputed amounts upon receipt of the invoice from us. All invoices and all payments for Services under this Agreement shall be in U.S. dollars.

3.4 Taxes.

shall collect and pay any federal, state or local sales tax, use tax, transportation tax, or other excise tax, customs duty or levy, including foreign, provincial, or local taxes which may be imposed upon the Services or that otherwise arise under a SOW.

3.5 Other Fees and Charges.

If any undisputed amounts due to us under this Agreement are not paid in accordance with this Section 3, we may charge you a finance charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less, determined and compounded daily from the date due until the date paid. Payment of finance charge(s) will not excuse or cure any breach or default for late payment.

3.6 Account Holds.

Either (i) at your request or, (ii) if any Fees remain unpaid for longer than thirty (30) days after the due date, at our discretion, your account may be placed on temporary hold. Such temporary hold will remain until (i) you provide us at least thirty (30) days advance request of the date you wish such hold to be removed (if at your request) or (ii) we reasonably determine all late Fees have been paid to our satisfaction (such period the “Account Hold Period”). During the Account Hold Period, we will not be responsible to retrieve or complete any new chargeback disputes that you may enter into our system or otherwise communicate to us. However, we will complete the process for all chargeback disputes that we have retrieved that are entered into our system or otherwise communicated to us prior to the Account Hold Period. You will be responsible to pay all applicable Fees for all such chargebacks that we have commenced prior to the Account Hold Period. After the Account Hold Period, we shall only be responsible for, and our service levels and any other guarantees shall only apply to chargebacks that originate after the Account Hold Period and are communicated to us in a timely manner.

4. TERM AND TERMINATION

4.1 Term.

This Agreement will commence on the earlier of the date on which you register for the Service or an account, or otherwise access or use the Site, Service, or Content (Effective Date), and will remain in full force and effect until terminated. Either party may terminate this Agreement at any time with notice to the other party.

4.2 Termination by a Third Party.

In the event we are notified by a court of competent jurisdiction, governmental body or authority, Acquiring Bank or the Card Association that you are no longer entitled to receive payment data for any reason whatsoever, we may suspend and/or terminate Services and/or this Agreement without prior notice and without liability. You may immediately terminate us for the same reason immediately upon notice to us without liability to us.

4.3 Effect of Termination and Survival.

Upon termination of this Agreement for any reason whatsoever, all rights and interests under this Agreement shall be extinguished and shall be given no further force nor effect except that (i) all accrued payment obligations hereunder, including any and all Fees payment of finance charges and related fees and charges, shall survive such expiration or termination; and (ii) the provisions of this Agreement relating to confidentiality, warranties, limitation of liability, indemnification, governing law, severability, headings and this paragraph shall survive termination or expiration of this Agreement.

4.4 Exclusivity.

For the duration of the Term, we will be the exclusive provider of Services to you, including chargeback management and issuer notification alerts, excepting any previously existing relationship and providers.

5. INTELLECTUAL PROPERTY; PROHIBITION AGAINST REVERSE ENGINEERING

The parties agree that Chargeback.com and its Affiliate Partners own and retain all right, title and interest in and to the Services, its Trademarks, copyrights, technology and any related technology utilized under or in connection with this Agreement, including but not limited to all intellectual property rights associated therewith. No title to or ownership of any of the foregoing is granted or otherwise transferred to you or any other entity or person under this Agreement. You shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of Services or related technology. Except as authorized in this Agreement, neither party shall take any actions inconsistent with the other party’s ownership of its Trademarks and any associated registrations or attack the validity thereof. Neither party shall use Trademarks of the other party without prior written consent from said party.

6. REPRESENTATIONS AND WARRANTIES

6.1 Mutual Representations and Warranties.

Each party represents and warrants to the other that (i) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (ii) the party’s obligations under this Agreement do not violate any law or breach any other agreement to which such party is bound; (iii) it has all necessary right, power and ability to execute this Agreement and to perform its obligations therein; and (iv) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement.

6.2 Your Representations and Warranties.

You represent and warrant that you are engaged in a lawful business and are duly licensed to conduct such business under the laws of all jurisdictions in which you conduct business. You further represent and warrant that all statements made by you in this Agreement, or in any other document relating hereto by you or on your behalf, are to the best of your knowledge true, accurate and complete. To the extent applicable to you, you will comply with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over you and your business. You will further comply with the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach-Bliley Act, the National Automated Clearing House Association (NACHA) and any other regulatory body or agency having jurisdiction over the subject matter hereof.

6.3 Our Representations and Warranties.

We represent and warrant that we will provide the Services in a professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing Services of a similar nature under similar circumstances by personnel with requisite skills, qualifications and licenses needed to carry out such work, and in compliance with all applicable laws, regulations, rules, ordinances and orders of governmental authorities having jurisdiction over us and our business, and in a timely and commercially reasonable manner. To the extent applicable to the Services, we will further comply with the Payment Card Industry Data Security Standard (PCI DSS), the Gramm-Leach-Bliley Act, the National Automated Clearing House Association (NACHA) and any other regulatory body or agency having jurisdiction over the subject matter hereof or any association recognized within the applicable industry. You acknowledge that Services are designed for use with certain third-party programs, including, without limitation, certain Internet browser software programs. You will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. We make no warranty, express or implied, with regard to any such third-party software. We strive to provide the Services as soon as commercially practicable after we receive the necessary Data from you, and in accordance with our Services Standards. In the event that we do not provide the Services as set forth herein or in our Services Standards, we shall use commercially reasonable efforts to re-perform our Services in accordance with such standards. You acknowledge that we do not warrant that such efforts will be successful. If after thirty (30) days our efforts are not successful, you may immediately terminate this Agreement. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, FOR INTERRUPTIONS, OUTAGES OR OTHER DELAYS IN OUR SERVICES. We do not warrant the services of any third party, including without limitation any Card Association.

7. LIMITATION OF LIABILITY

7.1 Our Disclaimers.

WE DO NOT INSURE OR GUARANTEE THE OUTCOME OF ANY CHARGEBACK ARBITRATION PROCEEDING OR RELATED DISPUTE. YOU UNDERSTAND AND AGREE THAT WE SHALL BEAR NO RISK WITH RESPECT TO YOUR SALE OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RISK ASSOCIATED WITH CREDIT CARD FRAUD, ACH FRAUD, CHECK FRAUD OR CHARGEBACKS.

WE EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS, HOWEVER OCCURRING INCLUDING NEGLIGENCE, ARISING FROM OR RELATED TO: (I) YOUR FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE YOUR ACCOUNT(S); AND (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH YOUR ACCOUNT(S) SO LONG AS THESE WERE NOT CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR MISUSE OF YOUR DATA OR SYSTEMS.

WE EXPRESSLY DISCLAIM ANY LIABILITY OR LOSS FOR OR RESULTING FROM THE ACCURACY, LEGITIMACY, OR TIMELINESS OF DATA FORWARDED FROM YOU OR YOUR APPLICABLE DATA AND DATABASES.

7.2 Limitation of Liability.

UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ANY OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OF THE PARTIES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES HOWEVER OR WHENEVER ARISING, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST REVENUE, LOST PROFITS, ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE OR OTHERWISE, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

OUR TOTAL LIABILITY TO YOU, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, UNDER THIS AGREEMENT OR WITH REGARD TO ANY SERVICES OR ANY OTHER PRODUCTS OR SERVICES, SHALL NOT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY YOU DURING THE TERM OF THIS AGREEMENT.

THE LIMITATIONS SET FORTH ABOVE SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREUNDER, OR TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

8. INDEMNIFICATION

8.1 Indemnification by Us.

We shall defend, indemnify and hold you and any of your officers, directors, agents and employees harmless from and against any and all third party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by such indemnified persons, arising out of or relating to (a) any breach by us of any of our representations, warranties or obligations set forth in this Agreement; (b) any damage or loss caused by gross negligence, fraud, dishonesty or willful misconduct by us or any of our employees or agents; (c) any alleged infringement by us of a patent, copyright, trademark or other intellectual property right of a third party; (d) claims relating to our unauthorized disclosure of consumer data; (e) any alleged or actual violation by us of any applicable laws, regulations or rules of (i) the Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof Provided however, our obligations in this Section 8.1 do not apply to claims for an alleged infringement by us of a patent, copyright, trademark or other intellectual property right of a third party if Services or portions or components thereof (i) are modified by you if the alleged infringement relates to such modification; (ii) are combined by you with other products, processes or materials not supplied or recommended by us where the alleged infringement relates to such combination, or (iii) continue to be used after we have made a non-infringing version available to you (collectively, “your Faults”). If Services or any component thereof becomes, or in our opinion is likely to become, the subject of a claim of infringement, then you shall permit us, at our sole option and expense, either to (x) procure for you the right to continue using Services as permitted in this Agreement, or (y) replace or modify the affected Services or infringing component so that it becomes non-infringing. If, after (thirty) 30 days we are unable to cure the infringement, either party may immediately terminate this Agreement upon notice to the other. THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF CHARGEBACK.COM TO YOU WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY WITH RESPECT TO SERVICES.

8.2 Indemnification by You.

You shall defend, indemnify and hold harmless Chargeback.com and its parents, and/or subsidiaries, and any of their officers, directors, agents and employees, from and against any and all third party claims, actions, proceedings, and suits (“Claims”) and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by such indemnified persons, arising out of or relating to (a) any breach by you of any of your representations, warranties or obligations set forth in this Agreement; (b) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by you or any of your employees, agents or customers; (c) the reliability, accuracy or legitimacy of payment data or purchase orders submitted by you to us; (d) payment card transactions submitted by you to us and rejected by us or an Issuing Bank; (e) any alleged infringement of a patent, copyright, trademark or other intellectual property right resulting from your Faults; (f) claims by your customers, including, without limitation, claims relating to your unauthorized disclosure of consumer data; and (g) any alleged or actual violation by you of any applicable laws, regulations or rules of (i) the Card Associations; (ii) the Gramm Leach Bliley Act; (iii) or any regulatory body or agency having jurisdiction over the subject matter hereof. In the event you cause fines and/or penalties to be charged to us by the Card Associations or any other entity, you agree to immediately reimburse us for such fines and penalties.

9. GENERAL PROVISIONS

9.1 Notices.

All notices to you shall be given electronically, sent to the electronic mail address provided by or for you during registration for Services and posted in the Merchant Control Panel of your Chargeback.com Account. Any termination notice to us shall be given electronically by sending an email to support@chargeback.com from within the Merchant Control panel of your Chargeback.com Account. All other notices to us shall be given electronically to support@chargeback.com with a written copy to Chargeback.com, Inc. Legal Department, 10235 South Jordan Gateway, 5th Floor, South Jordan, UT 84095 or to 801-753-0825 (fax), Attention: General Counsel. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt if sent by fax, or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid.

9.2 Attorney’s Fees.

If a party seeks to enforce any of its rights and obligations hereunder by legal proceedings and prevails or is the substantially prevailing party, such party shall be entitled to recover from the other party any and all costs and expenses incurred by such party, including, but not limited to all attorneys’ fees, court costs, and expert fees.

9.3 Relationship of the Parties.

We are an independent contractor and not an agent or employee of, and has no authority to bind, you by contract or otherwise. You have no right or authority to control the manner or means by which the Services are accomplished.

9.4 Confidentiality.

Neither party shall disclose any of the terms of this Agreement at any time without the prior written approval of the other party, except for (a) as may be required by applicable law or by any competent authority, or (b) such limited disclosure in confidence as may be reasonably necessary to either party’s bankers, investors or potential investors, attorneys and accountants. Each party (the “receiving party”) understands that the other party (the “disclosing party”) has disclosed or may disclose information relating to the disclosing party’s business (hereinafter referred to as “Confidential Information” of the disclosing party). Such Confidential Information includes, without limitation, the Data login identifiers and credentials for Accounts. The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information except as necessary, permitted or required to carry out the obligations under this Agreement. Confidential Information shall not include, and the terms of this Section 9.4 shall not apply to, any information which: (a) is or falls into the public domain without fault of the receiving party; or (b) the receiving party can show was in its possession prior to receipt thereof from the disclosing party; or (c) the receiving party receives from a third party with no obligation of confidence to the disclosing party; or (d) the disclosing party discloses to a third party with no obligation of confidence to the disclosing party; or (e) the receiving party independently develops without benefit of any Confidential Information.

9.5 Assignment.

Neither party will have the right or the power to assign any of its rights or delegate the performance of any of its obligations under this Agreement without the prior written consent of the other. Provided however, either party will have the right to assign this Agreement to its successors and/or assigns (including but not limited to successors and/or assigns in connection with a merger, consolidation, sale of assets, or other change of control), without the other’s prior written consent. The parties will use commercially reasonable efforts to provide subsequent notice to the other in the event of such assignment.

9.6 Waiver.

The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.

9.7 Severability; Headings.

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.

9.8 Governing Law; Jurisdiction.

This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Utah, without reference or giving effect to its conflicts of law principles. The parties hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Salt Lake City, Utah with respect to any action, claim or proceeding arising out of or related to this Agreement.

9.9 Entire Agreement.

This Agreement together with all of our policies referenced herein sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. The parties, by their representatives signing the Merchant Authorization Form, agree with the terms of this Agreement and further certify that their respective signatories are duly authorized to execute this Agreement.

9.10 Publicity.

Chargeback.com may identify Merchant on Chargeback.com’s customer lists and in its marketing and advertising materials, and announce that Merchant is a customer of Chargeback.com (including as to the Services), and reproduce Merchant’s name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith (including on Chargeback.com’s website). With Merchant’s prior written consent, Chargeback.com may develop and publish a case study based upon Merchant’s use of the Services. Such prior consent shall not be required for Chargeback.com to disclose Merchant’s name and the value of this Agreement in connection with any filings or disclosures required by Chargeback.com under applicable state or federal securities laws or in connection with due diligence by a potential financier or acquirer of Merchant.

9.11 Definitions.

Capitalized terms shall have the following meaning:

“Acquirer” or “Acquiring Bank” or “Acquiring Institution” means any financial institution supplying customers with the ability to accept credit cards for payments.

“ACH” or “Automated Clearing House” means an electronic network that allows the exchange and settlement of electronic payments between financial institutions.

“Card Association” means a network of Issuing Banks and Acquiring Banks that process payment cards of a specific brand, including, without limitation, the following: American Express, Discover Financial Services, JCB International, MasterCard International Inc., Visa Inc., Visa International Inc.

“Chargeback.com Account” means the records (including user names and passwords), hardware, software and arrangements that allow you to interact with us and our systems, services and products, and which allow us to make, keep and store records of any such interactions.

“Data” means any information or data you provide us in connection with the Service or any Transaction or generated or obtained by us in the course of providing the Services, including without limitation names, addresses, telephone numbers, email addresses, social security numbers and/or tax identification numbers and payment data, as well as types of customer purchases and descriptions of purchases, credit card sales information, payment records and related data from your database and/or the database of any applicable credit card processor and all information related to your customers and any chargebacks that are processed by us.

“Effective Date” means the date on which you register for the Service or an account, or otherwise access or use the Site, Service, or Content.

“Fees” means any and all fees due to us or any other person for Services in accordance with this Agreement.

“Fee Schedule” means a list of Fees and charges that is accepted by you and paid by you to us.

“Issuing Bank” means the financial institution that issues Card Association branded Payment Cards directly to consumers.

“PCI DSS” means Payment Card Industry Data Security Standard.

“Services” means the fraud and chargeback response and management products and services, that we provide directly, pursuant to the terms and conditions set forth herein, and/or are described at https://chargeback.com.

“Services Standards” means the standards, procedures, timelines and other process metrics in providing the Services, as described at https://chargeback.com which may be updated or modified from time to time.

“Trademark(s)” means all common law or registered trademark(s), service mark(s), trade name(s) and trade dress rights and/or similar or related rights now or hereafter owned, used or otherwise belonging to a party to this Agreement under any laws of any country or jurisdiction, including but not limited to the United States of America, whether existing now or hereafter adopted.

“Transaction(s)” means any billable occurrence completed or submitted under your Account including but not limited to sale, void, refund, credit offline force, capture, authorization or settlement regardless of whether approved or declined.

“Transaction Monitoring Services” means any transaction monitoring and related services or product offered by us now or in the future, including but not limited to the following: BIN Scrub™, CPA Validation Scrub™, MID Lock™ and MID Selection™, pursuant to the terms and conditions set forth herein, on Appendix B hereto, and/or are described further at https://chargeback.com.

© 2017 Chargeback.com, Inc.

End of Terms of Service

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