Terms of Service

1. CERTAIN DEFINITIONS.

a. CUSTOMER DATA. The term “Customer Data” means all transactional information made available to Chargeback.com by Licensee through or in connection with the use of the Services (including but not limited to, customer information, payment information, order information, dates, payment amounts, purchased products and related transactional data), whether made available directly from Licensee or from a 3rd party payment, ecommerce or other similar transactional platform.

b. INFORMATION. The term “Information” means information resulting from the use of any or all of the Services.

c. DOCUMENTS. The term “Documents” refers to any and all materials including documentation and support material, including any on-line training materials, in hard copy and electronic format (if available) designed to assist Licensee in the understanding, application, capability, maintenance, or use of the Services which are delivered to Licensee by Chargeback.com pursuant to and/or during the Term, and any updates or modifications thereof.

2. LICENSE GRANT. Chargeback.com hereby grants, and Licensee hereby accepts, subject to the terms and conditions of these Terms, a limited, non-exclusive, non-sublicensable, non-transferable, license during the Term to access and use the Services as set forth herein (the “License”) and as more fully set forth on or limited by the Order Form. Licensee shall not have any rights to the Services except as expressly granted in these Terms and the Order Form. Chargeback.com reserves to itself all rights to the Services not expressly granted pursuant to these Terms. Subject to the terms and conditions of these Terms, Licensee hereby grants to Chargeback.com, during the Term, the right and license to use, modify, organize, display and access all Customer Data and Information, but only as necessary for Chargeback.com’s performance of its obligations hereunder, including the Services.

3. USE OF SERVICES. The Services are for Licensee’s use for its own internal business purposes and those of its affiliates and subsidiaries, except with respect to any exceptions expressly set forth in the Order Form. Use of the Services is subject to the provisions set forth in Sections 5, 11 and 12 below, and the restrictions set forth in this Section will survive the termination of these Terms. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Licensee, Licensee shall take all steps necessary to terminate the unauthorized use. Licensee will cooperate and assist with any actions taken by Chargeback.com to prevent or terminate such unauthorized use.

4. CUSTOMER DATA.

a. Access to Customer Data: As part of the onboarding process, Licensee will give access to Licensee’s Customer Data by either providing Customer Data directly to Chargeback.com or will provide Chargeback.com with credentials to access such data from a 3rd party service provider.

b. Unauthorized Use: Chargeback.com shall take all steps necessary to protect any such credentials and terminate any unauthorized use. Chargeback.com will cooperate and assist with any actions taken by Licensee or its 3rd party service provider to prevent or terminate such unauthorized use.

c. Accuracy of Customer Data: Licensee represents and warrants that the Customer Data is accurate to the best of its knowledge, and the provision of or access to Customer Data directly or through a 3rd party will not violate any applicable agreements between Licensee and such 3rd party and will otherwise be provided in accordance with laws applicable to the sharing, delivery and storage of such Customer Data. Chargeback.com also agrees to use and retain such Customer Data collected in accordance with applicable laws, including compliance with Payment Card Industry Data Security Standard (“PCI DSS”). Chargeback.com will use commercially reasonable efforts to safeguard Customer Data including adhering with all applicable and then-current legal obligations and security measures required by law and will comply with the requirements set forth in Exhibit A. Chargeback.com warrants that it has taken such precautions required by law, PCI DSS, and as are commercially reasonable to ensure that Customer Data is protected from unauthorized disclosure, processing, or use, and that it has taken reasonable measures to ensure that its electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties.Licensee shall indemnify and hold Chargeback.com harmless against direct losses and expenses arising out of the inaccuracy of any Customer Data or any breach of Licensee’s representations and warranties regarding such Customer Data set forth in this Section 4, provided that the loss or expense does not arise from the gross negligence or willful misconduct of Chargeback.com or its employees, agents, contractors or representatives.

d. Confidentiality of Customer Data: Chargeback.com acknowledges and agrees that all Customer Data will be considered “Confidential Information” and subject to the protections described in Section 11 below. Chargeback.com agrees to return or destroy all physical forms, copies, or derivations of the Customer Data to Licensee within thirty (30) days of written request or within ninety (90) days of the termination of this Agreement, including any backup copies on tapes, disks, optical disks, or any other media. In the event that Chargeback.com believes there has been a breach of the terms of this Section 4, Chargeback.com will immediately advise Licensee and take reasonable steps to remedy such breach and will cooperate with Licensee in connection with any notifications to affected parties required by law or regulation. Chargeback.com disclaims any liability for any losses to Licensee or any 3rd party with respect to its permitted access to and use of Customer Data as provided herein, provided that such loss or expense does not arise from the fraud, willful misconduct or gross negligence of Chargeback.com and its employees, agents, contractors or representatives.

e. Use of Customer Data and Information: Chargeback.com represents and warrants that it will not use, sell, or rent the Customer Data or disclose the Customer Data in any manner not expressly authorized by this Agreement. Notwithstanding the foregoing, Chargeback.com may disclose the Customer Data to service providers who are necessary to the performance of Chargeback.com’s obligations under this Agreement, provided such service providers also agree in writing to the limited use and disclosure obligations set forth in this Agreement.

5. COPYRIGHT and TITLE. The Services and any copy thereof, in whole or in part, and all copyrights, trade secrets and other proprietary rights therein, including any derivative work based thereon, are and will remain the sole property of Chargeback.com, regardless of the use made by Licensee of the same and in any format; and are protected by certain United States and international copyright laws and trademark laws. The License confers no title of ownership in the Services and is not a sale of any rights in the Services. Licensee shall treat the Services with at least the same standard of care as it treats any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. Licensee agrees not to, and to use best efforts to cause it

6. INFORMATION TECHNOLOGY/FEEDBACK. Chargeback.com's customers and any permitted sublicensees, if any, not to, challenge Chargeback.com’s ownership in or enforceability of Chargeback.com’s rights in and to any Services or any related information technology. Licensee may from time to time provide suggestions, comments or other feedback to Chargeback.com with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Licensee, shall not create any confidentiality obligation for Chargeback.com notwithstanding anything else in this Agreement. Licensee shall, and hereby does, grant to Chargeback.com a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

7. WARRANTY and INDEMNITY.

a. Chargeback.com represents and warrants that the Services will operate in material compliance with the Documents throughout the Term. From the Effective Date and after termination of these Terms, Chargeback.com shall defend, indemnify and hold harmless Licensee and its respective affiliates, directors, officers, employees, agents, contractors and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), and judgments, in each case based on third party claims (A) that Licensee’s authorized use of the Services violates, infringes upon or misappropriates any U.S. patent that was issued as of the Effective Date, copyright, trademark, trade secret, or other proprietary rights of persons, firms or entities who are not parties to these Terms; (B) arising from or related to the unauthorized disclosure or use of Personal Information (as defined in Exhibit A) by Chargeback.com or its employees, agents, contractors or representatives, including, without limitation, any unauthorized disclosure or use resulting from a Security Breach (as defined in Exhibit A); (C) arising from the gross negligence, willful misconduct or recklessness of Chargeback.com; and (D) arising from Chargeback.com’s breach of any term, representation, warranty or covenant contained in these Terms (except to the extent that any loss is due to the breach of these Terms by Licensee or the willful misconduct or bad faith by Licensee); provided that (a) Licensee gives Chargeback.com prompt written notice of the claim; (b) Chargeback.com has full and complete control over the defense and settlement of the claim; (c) Licensee provides assistance in connection with the defense and settlement of the claim as Chargeback.com may reasonably request; and (d) Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Chargeback.com shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion, provided such settlement includes the execution of a full and complete release of all claims and actions made against the Licensee by each party bringing any such claims or actions.

Chargeback.com will have no obligation under this Section 6 for any infringement to the extent that it arises out of or is based upon: (i) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the License; (iv) Licensee’s failure to use the latest release of the Software or to comply with instructions provided by Chargeback.com, if the alleged infringement would not have occurred but for such failure; or (v) any modification of the Software not made by Chargeback.com where such infringement would not have occurred absent such modification. These provisions (i) – (v) shall collectively be referred to as “Licensee’s Misuse of the Services”.

b. From the Effective Date and after termination of these Terms, Licensee shall defend, indemnify and hold harmless Chargeback.com and its respective affiliates, directors, officers, employees, agents, contractors and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), and judgments, in each case based on third party claims (A) of infringement arising from Licensee’s Misuse of the Services as stated above; (B) arising from the gross negligence, willful misconduct or recklessness of Licensee; and (C) arising from Licensee’s breach of any term, representation, warranty or covenant contained in these Terms (except to the extent that any loss is due to the breach of these Terms by Chargeback.com or the willful misconduct or bad faith by Chargeback.com); provided that (a) Chargeback.com give Licensee prompt written notice of the claim; (b) Licensee has full and complete control over the defense and settlement of the claim; (c) Chargeback.com provides assistance in connection with the defense and settlement of the claim as Licensee may reasonably request; and (d) Chargeback.com complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Licensee shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion, provided such settlement includes the execution of a full and complete release of all claims and actions made against the Chargeback.com by each party bringing any such claims or actions.

8. TERM, FEE AND PAYMENT. The License granted by these Terms shall be for an initial term as set forth in the Order Form which shall begin as of the Effective Date (“Initial Term”). At the end of the Initial Term, these Terms shall automatically renew for subsequent periods of one (1) year each (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party of its intention to not renew these Terms not less than thirty (30) days prior to the expiration of the Initial Term or Renewal Term then in effect. All amounts payable hereunder by Licensee shall be payable in United States funds. The Licensee agrees to pay any and all fees, assessments, and taxes associated with the amounts due under these Terms. A finance charge shall be imposed on all account balances outstanding over thirty (30) days. The finance charge is 1.5% per month or the highest rate allowed under applicable law, whichever is lower.

9. ASSIGNMENT. Neither party shall be allowed to assign this Agreement to any third party without the express written consent of the other party, which shall not be unreasonably denied or delayed; provided that either party may assign this Agreement in connection with the sale, merger, acquisition, or similar restructuring of the assigning party or the sale of all or substantially all of the assigning party’s assets.

10. UPDATES AND SUPPORT SERVICES. Chargeback.com will provide updates to the Software without additional charge. Chargeback.com will provide Licensee with support as long as Licensee is not in default of any material terms of these Terms. The support in using the Services may occur at the discretion of Chargeback.com by phone, email, or mail request(s) to Chargeback.com for help on incidental needs related to use of Software. Licensee shall also have web access to online Chargeback.com Documents and other training materials, if any, for its internal use only, at no additional charge. Any training, consulting or other professional services on the use of the Services beyond the services specified above will be arranged for under separate service agreement(s) between Chargeback.com and Licensee. While Chargeback.com will provide a quote for requested services, neither party is obligated to enter into any separate professional service agreement.

11. TRADE SECRETS. The Services are trade secrets of Chargeback.com and contain valuable proprietary products and trade secrets of Chargeback.com, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee shall take appropriate action to protect the confidentiality of the Services. Licensee shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Services in whole or in part, or otherwise use, copy, reproduce or distribute any Services except as expressly permitted hereunder. The provisions of this section shall survive the termination of these Terms.

12. CONFIDENTIALITY. All information that either party receives from the other (hereinafter the “Recipient”) that is marked “confidential” by the disclosing party (hereinafter the “Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry (hereinafter “Confidential Information”) shall be kept confidential, and each party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below; provided, however, that Chargeback.com may disclose these Terms to a party performing financial or legal due diligence with respect to Chargeback.com. For purposes of these Terms, “Confidential Information” shall mean (i) all documents marked as“Confidential” and all computer software and related materials and processes, (ii) all other oral or written presentations or other information (regardless of the form in which the information is communicated or maintained) which the Disclosing Party or any of its Representatives (as hereinafter defined) describes as or states is to be considered confidential and/or (iii) or any other information disclosed, which the Recipient, under the circumstances surrounding its disclosure, should know is treated as confidential and proprietary information of the Disclosing Party, including any such information that may be designated by law as confidential, as well as all notes, analyses, compilations, studies or other documents, records or data prepared by or on behalf of the Recipient or its Representatives that contain, discuss, describe, disclose or otherwise reflect or are generated therefrom. No Recipient will copy and distribute, furnish or otherwise disclose any Confidential Information of the Disclosing Party to any persons who are not the Recipient’s Representatives, except to government authorities or independent examiners or for the implementation of these, without the specific written permission of the Disclosing Party. Disclosure of any Confidential Information of the Disclosing Party shall be restricted to those directors, officers, employees, agents, affiliates, advisors, consultants, accountants and attorneys of the Recipient (each of the foregoing, a “Representative”) who reasonably have a need to know such information for the performance of its obligations under these Terms. Such Representative(s) shall be notified by the Recipient of the confidentiality obligations of these Terms and of the proprietary and confidential nature of such Confidential Information, and the Recipient shall be responsible for any breach by its Representative(s) of these obligations. Notwithstanding the foregoing, each party may disclose these Terms to a party performing financial or legal due diligence with respect to each party’s business.

Each party agrees, during the Term hereof to keep confidential all Confidential Information disclosed to it by the Disclosing Party in accordance herewith, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information). Promptly after the termination or expiration of these Terms, the Recipient shall, and shall direct its Representative(s) to, return to the Disclosing Party, or destroy, all Confidential Information furnished by the Disclosing Party or any Representative(s) thereof pursuant to these Terms.

Neither party shall have any such obligation with respect to the use or disclosure to third parties of such Confidential Information as can be established to: (a) have been or become known publicly other than as a result of disclosure by the Recipient or its Representative(s) in breach of these Terms; (b) have been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the Recipient; (c) have been known otherwise by the Recipient before communication by the Disclosing Party; (d) have been received by the Recipient without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information; or (e) have been independently developed by the Recipient or its Representative(s) without breach of these Terms.

If the Recipient is required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Recipient shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Recipient shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Terms. If such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Section 11, the Recipient may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. It is agreed that each party shall be entitled, at law or in equity, to specifically enforce the provisions of this Section 11, to prevent breaches hereof, and to seek damages for breach hereof. The provisions of this Section 11 shall survive the expiration or termination of these Terms or of any License granted under these Terms for whatever reason.

13. OTHER RESTRICTIONS. Licensee may not rent, loan, license, market, or sell the Services or copies thereof, in whole or in part, to any party. Licensee hereby agrees (i) to notify its employees and agents who may have access to the Services or Information of the restrictions contained in these Terms and (ii) to use commercially reasonable efforts to ensure their compliance with such restrictions. Add restrictions.

14. TERMINATION. If a party hereto provides a written notice to terminate to the other party, and with respect to the Licensee, ceases use of the Services on or prior to the end of the then current term, the License granted herein shall terminate at the end of the then current Term. Either party may immediately terminate these Terms, or any License granted under it, by giving the other party written notice of termination if the other party commits a material breach hereof and such breach is not cured within thirty (30) days. Upon any termination of these Terms, Licensee shall cease all use of the Services, and each party shall destroy or return to the Disclosing Party all data, files, Confidential Information, Documents and other materials provided by the Disclosing Party in connection with the Services then in the Recipient’s possession and take such other actions as the Disclosing Party may reasonably request in writing to ensure that no copy of the Services, related Documents or Confidential Information remains in the Recipient’s possession.

15. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations in its use of the Services and, in particular (but not as a limitation), Licensee will comply with the requirements of the General Data Protection Regulation (GDPR) in Europe and the California Consumer Privacy Act (CCPA) in California to the extent they are applicable to Licensee’s conduct, and shall not export or re-export the Services without Chargeback.com’s prior written consent, and, if such consent is granted, without Licensee first obtaining all required United States and foreign government licenses. To the extent permitted by applicable law, Licensee will defend, indemnify, and hold harmless Chargeback.com from and against any violation of such laws or regulations by Licensee or any of its agents, directors, or employees. Chargeback.com will comply with all applicable laws and regulations in its provision of the Services. Chargeback.com will defend, indemnify, and hold harmless Licensee from and against any violation of such laws or regulations by Chargeback.com or its contractors.

16. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANT ABILITY OR FITNESS FORA PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND ACCURACY OF THE DOCUMENTS AND TO THE ACCURACY AND USE OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, CHARGEBACK.COM DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in these Terms are for the benefit of Licensee only.

17. LIMITATION ON LIABILITY.

a. IN NO EVENT WILL EITHER PARTY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF DATA OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES OR INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CHARGEBACK.COM BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY SERVICES OR INFORMATION. LICENSEE ASSUMES RESPONSIBILITY FOR THE USE AND RESULTS OBTAINED FROM THE SERVICES. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000.00). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY TO LICENSEE.

b. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 17a SHALL NOT APPLY TO THE FEES PAYABLE BY LICENSEE OR DAMAGES, (i) RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, (ii) ARISING FROM CLAIMS FOR WHICH A PARTY HAS AGREED TO INDEMNIFY THE OTHER PARTY, OR (iii) ARISING FROM ITS OBLIGATIONS SET FORTH IN SECTION 4 OF EXHIBIT A.

18. GOVERNING LAW and JURISDICTION. These Terms shall be governed by the laws of the State of Utah, U.S.A. The parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Utah, and they do agree that venue shall be proper in the County of Salt Lake in the State of Utah.

19. REMEDIES. In the event that any party defaults in any of its obligations under these Terms, in addition to any other remedies provided pursuant to these Terms or Governing Law, but subject to provisions Sections 15 and 16, any non-breaching party will be entitled to recover from the breaching party all losses incurred by such non-breaching party caused by or in connection with such breach. It is understood and agreed that money damages would not be a sufficient remedy for any breach of these Terms by any party or by any other Recipient of Confidential Information pursuant to these Terms and that the party whose Confidential Information is disclosed or used in violation of these Terms will be entitled to claim injunctive or equitable relief as a remedy for any such breach. Such remedy will not be deemed to be the exclusive remedy for breach of these Terms, but will be in addition to all other remedies available to such party at law or equity. In addition to any other remedies that may be available, in law, in equity or otherwise, the non-breaching party shall been titled to obtain injunctive relief against the threatened breach of these Terms or the continuation of any such breach, without the necessity of proving actual damages.

20. ATTORNEY FEES. In case of arbitration or action to enforce any rights or conditions of these Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.

21. ENTIRE AGREEMENT; AMENDMENT. These Terms and the Order Form together are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties. Notwithstanding the forgoing, Chargeback.com may modify these Terms from time to time by providing Licensee written notice of such modification at least thirty (30) days prior to the effectiveness of such modifications. Upon any such modification, Licensee may terminate these Terms without penalty by providing notice of termination within thirty (30) days of Chargeback.com delivering notice to Licensee of such modification.

22. NON-WAIVER. No waiver of any provision of these Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of these Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.

23. NO THIRD-PARTY BENEFICIARIES. Nothing in these Terms, express or implied, is intended to confer on any person, other than the parties to these Terms, any right or remedy of any nature whatsoever.

24. SEVERABILITY; BINDING EFFECT. If any provision of these Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of these Terms shall not be impaired. These Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by Section 8, assigns.

25. FORCE MAJEURE. No party will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond the party’s reasonable control (including without limitation, any act of God, act of war, riot, actions of terrorists, earthquake, fire, explosion, natural disaster, flooding, embargo, sabotage, government law, ordinance, rule, regulation, order or actions), so long as the party uses all commercially reasonable efforts to avoid or remove such causes of non-performance. However, if an excusable delay continues more than thirty (30) days, the other party may, at its option, terminate these Terms without penalty upon written notice.

26. NOTICES. All notices, consents, and other communications permitted or required to be given hereunder (herein referred to as a “Notice”) shall be in writing and addressed to the appropriate party. If to Licensee, the Notice will be sent to the address and/or email address provided to Chargeback.com in the Order Form or otherwise, and if to Chargeback.com, to the address of Chargeback.com’s headquarters as available on www.chargeback.com. Any party may change its address or email address for notification purposes by giving the other party Notice of the new address or email address and the date upon which it will become effective in accordance with the terms of this Section. A Notice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its transmission by electronic mail.

27. INVOICES. Invoices (if any) to Licensee hereunder (herein referred to as an “Invoice”) shall be in writing sent as set forth in Section 25. If sent via electronic mail or other electronic transmission, the Invoice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its electronic transmission.

28. THIRD-PARTY SERVICES AND PRICING. Charbeback.com may incorporate the services or products of third-parties (“Third-Party Services”) into the Services in order to provide certain functions to Licensee. To the extent those Third-Party Services require Licensee to agree to the third party’s terms, or to agree to any changed terms, Licensee agrees to do so. If the pricing of any Third-Party Services changes, Chargeback.com may adjust its pricing to reflect that changed pricing for the Third-Party Services.

29. USE OF NAME. With the prior written consent of Licensee, Chargeback.com may identify Licensee in Chargeback.com marketing materials. During the Term, Licensee hereby grants Chargeback.com a limited, non-exclusive right to use Licensee’s trademarks, logos, and other materials provided by Licensee to Chargeback.com for any Licensee-approved purpose. Chargeback.com will cease any such use upon written notice from Licensee.

30. MUTUAL WARRANTIES. Each party represents and warrants to the other that: (a) these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of these Terms; and (c) the execution, delivery, and performance of these Terms does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

31. AVAILABILITY. Chargeback.com represents, warrants, and covenants that the Licensed Service will be available for Licensee 99.0% of the time during peak business hours (M-F, 8:00 a.m. to 8:00 p.m. EST) and 99.0% of non-peak hours (collectively “Uptime”). Uptime will be measured on a calendar month basis and will exclude scheduled maintenance windows and issues associated with Licensee’s equipment or systems, or ISP connections. Licensee may immediately terminate this Agreement if Chargeback.com fails to meet the Uptime commitments three times over any rolling six-month period.