By registering for one or more accounts or using the products and services provided by No Fraud LLC, a Delaware limited liability company (“NoFraud”), the customer (“you” or “your”) accepts this agreement (the “Agreement”). If you are accessing the Service (as defined below) as a representative of an organization, this Agreement binds both you individually and the organization and references to “you” and “your” shall be construed to apply to you individually and the organization you represent. You may not use or access the Service unless you agree to this Agreement. By using the Service, or by clicking the “I Accept”, “I Agree” “Sign Up” or “Notify me” button, you accept and agree to be bound and abide by this Agreement and the NoFraud Rate Sheet provided separately to you. If you do not want to agree to the terms of this Agreement and/or the NoFraud Rate Sheet, you must not use the Service.
1. Scope. Subject to the terms of this Agreement, your account with NoFraud allows you to transmit credit card payment information from customers of your business to NoFraud for authentication (the “Service”) to a remotely hosted and managed software package which is comprised of various computer programs, infrastructure architecture, and database(s) (the “NoFraud Software”). NoFraud is not a bank and is not offering banking services.
2. Registration. To use the Service (a) you must have a valid e-mail address and create a payment account with NoFraud by providing complete and accurate registration information (the “Account”), (b) be authorized to do business in the United States, (c) be at least 18 years of age, (d) have full power and authority to enter into this Agreement and in doing so, not violate any other agreement to which you are a party and (e) not use the Service if any applicable laws in your country prohibit you from doing so in accordance with this Agreement. NoFraud reserves the right to refuse to provide the Service to anyone at any time.
3. Term and Termination
3.1. Term. This Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by you or NoFraud.
3.2. Termination. You may terminate this Agreement by closing your Account at any time by following the instructions on NoFraud’s website. NoFraud may terminate this Agreement and close your Account at any time for any reason effective upon providing you with a thirty (30) day notice by e-mail. NoFraud will not be liable to you for compensation, reimbursement, or damages of any kind in connection with any termination or suspension of the Service.
3.3. Effect of Termination. Termination does not relieve you of your obligation to pay all fees, charges, and other payment obligations that have been incurred through the date of termination.
4. Certain Acknowledgements. You acknowledge that NoFraud is relying on the accuracy of information you provide, including personally identifiable information about your customers, to provide the Service. You are responsible for any inaccuracy or error in the Service arising from any inaccuracy is error in the information that you provide to NoFraud.
5. Pricing and Payment.
5.1. Fees. You agree to pay all fees assessed by NoFraud for providing the Service. Except as otherwise agreed in writing by NoFraud, these fees will be as set forth in the NoFraud Rate Sheet (and incorporated into this Agreement by reference). By NoFraud reserves the right to change the fees with 30 days’ notice to you.
5.2. Taxes. All fees are exclusive of any taxes, duties or other amounts, including without limitation, value added and withholding taxes, which are levied or based upon such charges, or upon this Agreement, by any government. Any taxes related to the Service will be paid by you unless you present an exemption certificate acceptable to the applicable taxing authorities.
5.3. Payment. NoFraud will invoice you monthly. Payments are due fifteen (15) days from the date of NoFraud’s invoice by debit ACH or credit card. You hereby grant NoFraud permission to debit your bank or charge the relevant credit card on the due date of an invoice for payment of any monies due NoFraud. You agree that while you are using the Service you will not cancel any existing debit authorization.
5.4. Late Payments and Payment Default. Any amount not paid when due will bear interest at a rate that is the lesser of three percent (3%) per month or the maximum rate permitted by law. You will also reimburse NoFraud for any fees and charges incurred by NoFraud due to any declined service charge or returned ACH. NoFraud may require you pay for Service at the beginning of the month based on NoFraud’s estimate of your usage if you fail to remit payment by the due date under any invoice. You will be liable for NoFraud’s costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
6. Software License.
6.1. License Grant. NoFraud grants you a personal, non-exclusive, revocable, non-transferable, non-sublicensable license to use any APIs, documentation, support pages, and any updates thereto provided to you by NoFraud solely to communicate with NoFraud’s systems to provide transaction and credit card information to NoFraud for evaluation. You shall not be granted any rights or license to the NoFraud Software, NoFraud name, logo, trademark or other identifiers. You acknowledge that through your payments of fees to NoFraud you are granted access to the Services. You further acknowledge that at no time shall you be entitled to download, distribute, install or otherwise redistribute the NoFraud Software in any form.
6.2. Restrictions. The Service, including any materials described in Section 6.1, NoFraud Software and NoFraud’s name, logo, trademark and other identifiers, are and will remain the sole and exclusive property of NoFraud. On termination of this Agreement, the license and right to use such materials is automatically terminated.
7. Confidentiality. You may receive information relating to NoFraud or to the Service that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain NoFraud’s exclusive property, (b) you will use Confidential Information only as is reasonably necessary for your participation in the Service, and (c) you will not otherwise disclose Confidential Information to any other person.
8. Representations and Warranties.
8.1. You represent and warrant to NoFraud that: (a) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement and grant the rights, licenses, and authorizations you grant under this Agreement, and (b) the name identified by you when you registered is and continues to be your name or business name under which you sell goods and services.
8.2. You represent and warrant and agree that at all times during your use of the Service (a) you will use the Service only for transactions related to your business and not on behalf of any other person or entity, (b) you and all transactions initiated by you will comply with all laws and regulations (including applicable privacy laws and regulations) applicable to you, (c) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service, and (d) you will not modify, reverse engineer, decompile or disassemble any part of the Service, whether in whole or in part.
8.3. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOFRAUD PROVIDES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES, AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT NOFRAUD HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR WITHOUT DELAY OR CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOFRAUD DISCLAIMS ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR TRADE USAGE.
9. Limitation on Liability.
9.1. Limitations. NoFraud’s and its affiliates’ (and its and their respective employees, directors, agents, and representatives) total liability arising out of or related to this Agreement is limited to the amounts NoFraud received from you under this Agreement in the six months preceding the date a claim is first asserted. NoFraud and its affiliates (and its and their respective employees, directors, agents, and representatives) will not be liable to the other or any other party for any consequential, special, incidental, punitive, exemplary, statutory, lost profits or other indirect damages, regardless of the form of action in which a claim for such damages is asserted. You acknowledge and agree that these exclusions and limitations are reasonable and are reflected in the amount of the fees charged by NoFraud.
9.2. Maximum Effect. The laws of certain states or other jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement. NoFraud’s and its affiliates’ (and its and their respective employees, directors, agents and representatives) liability is limited to the greatest extent permitted by applicable law.
10. Indemnification. You agree to defend, indemnify, and hold harmless NoFraud, its affiliates (and their respective employees, directors, agents, and representatives) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (a) any actual or alleged breach of any provision of this Agreement; (b) your use of the Service; (c) your obligations to pay amounts owed under this Agreement, including without limitation any fees, fines, penalties and attorneys’ fees; (d) negligence or willful misconduct of your employees, contractors, or agents; and (e) all third-party indemnity obligations NoFraud incurs as a direct or indirect result of your acts or omissions.
11.Chargeback Protection Policy.
11.1. Scope. Subject to the satisfaction of all of the Conditions (as defined herein), you shall be entitled to receive the Credit Amount (as defined below) from NoFraud for any chargebacks imposed on you by any credit cards issuer resulting from fraud or unauthorized charges by your customers or clients (the “Chargeback Protection”) used in a transaction authenticated and approved by utilizing the authentication procedures (as amended, supplemented or modified from time to time) of NoFraud (a “Qualified Transaction”). NoFraud reserves the right to adjust the fee charged in connection with fee Chargeback Protection service, by providing you with 14 days’ notice;
11.2. The Credit Amount. To the extent that NoFraud shall have determined that the Conditions for the Chargeback Protections have been satisfied, you shall be entitled to receive from NoFraud the amount chargeback by a credit card issuer (the “Credit Amount”) within 30 days of NoFraud’s determination that you are entitled to the Credit Amount. Notwithstanding anything to the contrary stated herein or the amount that was charged by the credit card issuer, in no event shall the Credit Amount exceed $5,000 per Qualified Transaction. Set forth below are the chargeback reason codes for the instances pursuant to which the customer shall be eligible to the benefits hereunder, subject to all of the terms and conditions contained herein:
Fraud (Card Not Present) / No cardholder authorization
Transaction not recognized
11.3. Conditions. In order to be entitled for the Credit Amount, all of the following conditions (the “Conditions”) shall have been satisfied, as may be determined in NoFraud’s absolute discretion:
11.4. Exclusions. The following shall be expressly excluded from, and customer shall not be entitled to any, reimbursement of the Credit Amount for:
11.5. Chargeback Protection Process. In order to be eligible to claim the Credit Amount, you shall submit any request for the Credit Amount no later than seven (7) days after customer shall have been notified of the chargeback, and submit any and all correspondence related thereto, including without limitation, a copy of the chargeback notification, proof of delivery and/or signature (as applicable to vendor based on stated vendor policy) and any other material information related to the Qualified Transaction and the chargeback. Once the chargeback dispute has been resolved by the credit card issuer, you shall immediately inform NoFraud and provide a copy of the resolution.
12.1. Force Majeure. Failure of NoFraud to fulfill or perform its obligations under this Agreement is excused if such failure is caused or occasioned by, without limitation, acts of God, acts of the public enemy, fire, explosion, flood, earthquake, drought, war, terrorism, riot, sabotage, embargo, strikes or other labor disputes (which strikes or disputes need not be settled), compliance with any order, regulation, or request of government, electrical surges and failure of telephone or other communication systems used in performing the Service, or by any other event or circumstance of like or different character to the foregoing beyond the reasonable control of NoFraud.
12.2. No Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by you without the prior written consent of NoFraud. This Agreement will be binding upon, and inure to the benefit of the successors and permitted assigns of the parties. Any assignment or transfer by you in violation of this Section 11.2 will be deemed null and void.
12.3. Notices. NoFraud primarily communicates with you via your Account and the e-mail address NoFraud has on file. By registering for the Service and accepting the terms of this Agreement, you affirmatively consent to receive notices electronically from NoFraud. You agree that NoFraud may provide all communications, including without limitation agreements related to the Service, amendments or changes to such agreements, or any policies, disclosures, notices, transaction information, statements, policies, responses to claims, and other customer communications that NoFraud may be required to provide to you by law (collectively, “Communications”) in electronic format. Communications may be posted to your Account or sent by e-mail to the address NoFraud has on file for you, and all such Communications will be deemed to be in “writing” and received by you when sent to you or published to your Account or e-mailed to you. You are responsible for printing, storing, and maintaining your own records of such Communications. It is your responsibility to ensure that your e-mail address is accurate and remains current. To ensure that NoFraud is able to provide you with important Communications, you must update NoFraud with any change in your e-mail address. Communications will not be distributed in paper unless you contact NoFraud and request a paper version of a particular document. NoFraud reserves the right to charge you a handling fee for any notices that NoFraud physically mails to you at your request or because your e-mail address fails.
12.4. Severability/ Headings. If any provision of this Agreement would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such provision, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition, unenforceability, without invalidating the remaining provisions of this Agreement, and the validity, legality and enforceability of such remaining provisions shall not be affected in any way thereby. The headings and subheadings of Sections of this Agreement are for convenience of reference only and shall not constitute part of or define or limit any of the provisions of this Agreement.
12.5. Entire Agreement. This Agreement, including its attachments, constitutes the entire understanding between you and NoFraud with respect to this subject matter and supersedes all previous understandings or agreements you and NoFraud with respect to this subject matter.
12.6. Amendment. NoFraud may modify this Agreement, the NoFraud Rate Terms or the Service at any time. To notify you of any amendments, NoFraud may post any modification to this Agreement to your Account, post the revised Agreement and any related documents to NoFraud’s website or email you at your provided email address. Using a particular form of notice in some instances does not obligate NoFraud to use the same form in other instance. Unless otherwise indicated in this Agreement, the modification will become effective within five (5) days after posting it to your Account or otherwise communicating it to you, and you will be deemed to accept the modification if you use your Account or the Service after the expiration of such five (5) days. If you do not accept a change to this Agreement or the Service, your sole remedy is to contact NoFraud and close your Account. Except as expressly provided above, no modification or amendment of this Agreement will be binding on NoFraud unless set forth in a writing signed by NoFraud. If you do not agree to the modified terms in this Agreement or the Service, you must stop using the Service.
12.7. Non-Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, will constitute a waiver of that or any other right, unless otherwise expressly provided herein.
12.8. Relationship of Parties. The parties’ status hereunder shall be that of independent contractors and nothing contained herein shall create, expressly or by implication, a partnership, joint venture or other association between the parties.
12.9. Governing Law; Arbitration. ALL CONTROVERSIES ARISING OUT OF THIS AGREEMENT SHALL BE SUBMITTED TO BINDING ARBITRATION IN NEW YORK COUNTY, NEW YORK, OR SUCH OTHER PLACE AS IS AGREED TO BY THE PARTIES, WITH SUCH ARBITRATION TO TAKE PLACE PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND HEARD BY AN ARBITRATION WHO IS ADMITTED TO THE BAR OF THE STATE OF NEW YORK AND WHO HAS AT LEAST TEN (10) YEARS’ EXPERIENCE LITIGATING IN THE FEDERAL AND STATE COURTS OF NEW YORK. JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. IN ANY SUCH ARBITRATION, EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIMS THAT IT IS NOT SUBJECT TO THE JURISDICTION OF SUCH ARBITRATION, THAT SUCH ARBITRATION BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH ARBITRATION IS IMPROPER. YOU AGREE THAT MONEY DAMAGES OR OTHER REMEDIES AT LAW MAY NOT BE SUFFICIENT OR ADEQUATE REMEDIES FOR ANY BREACH OR VIOLATION OF, OR A DEFAULT UNDER, SECTION 7 AND THAT, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO NOFRAUD AND NOTWITHSTANDING THE PRECEDING PROVISIONS OF THIS SECTION 11.9, NOFRAUD SHALL BE ENTITLED TO SEEK AN INJUNCTION RESTRAINING SUCH BREACH, VIOLATION OR DEFAULT OR THREATENED BREACH, VIOLATION OR DEFAULT AND TO ANY OTHER EQUITABLE RELIEF, INCLUDING WITHOUT LIMITATION SPECIFIC PERFORMANCE, WITHOUT BOND OR OTHER SECURITY BEING REQUIRED, TO THE FULLEST EXTENT PERMITTED BY LAW.
12.10. PCI DSS Notice. In compliance with the Payment Card Industry (PCI) Data Security Standard, as such standard may be amended from time to time (the “PCI DSS”, which is hereby incorporated into this Agreement), the current version of which is available for review on the PCI SSC web site at http://www.pcisecuritystandards.org, NoFraud is hereby acknowledging that NoFraud may be responsible for the security of cardholder data that NoFraud possess or may store, process or transmit on behalf of you, or to the extent that they could impact the security of your customers' cardholder data environment.
12.11. Survival. Sections 3.3, 7, 8, 9, 10, 11 and 12 will survive the termination of this Agreement.