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. If you do not agree to the terms of this Agreement, you must not use the Service.
These Terms provide that all disputes between you and NoFraud will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court, your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Sections 12.10 and 12.11 below for the details regarding your agreement to arbitrate any disputes with NoFraud.
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, (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 of Agreement. This Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and shall remain in effect until the later of: a.) you cease to use or have access to the Service; b.) all of NoFraud’s obligations arising from or related to the Service and this Agreement have ceased, including but not limited to the obligation to verify any transaction and/or to warrant the verification thereof, and any obligation to protect against chargebacks, fraud, or other claim of loss; and c.) NoFraud having a reasonable internal business use for maintaining any transaction data or other information arising or otherwise collected from the use of the Service.
3.2 Term of Service. The term of Service (the "Service Term") shall begin upon your acceptance of the Agreement and continue for the duration of any free trial. Should you and NoFraud execute a separate rate agreement, unless otherwise specified in the rate agreement, the Service Termshall then continue in effect for one (1) month from the date of execution of said rate agreement. At the conclusion of said one (1) month term, the Service Termshall then automatically renew for additional one (1) month renewal periods. Either party may prevent such renewal by providing written notice of non-renewal to the other not less than thirty (30) days prior to the desired end date of the contract. E-mail notice shall be sufficient.
For the avoidance of doubt and notwithstanding the foregoing, the ServiceTerm may also be terminated per the terms herein.
Should any conflict arise between this Agreement and the separately executed rate agreement, the rate agreement shall prevail.
3.3 Termination of the Service. Either party may terminate the Service upon the other party’s failure to cure a material breach of the Agreement within thirty (30) days of receiving written notice thereof from the non-breaching party. 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.
3.4 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. Upon termination of the Service, you shall not use or access the Service, and NoFraud’s obligation to provide the Service shall cease.
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 or error in the information that you provide to NoFraud.
5. PRICING AND PAYMENT.
5.1 Fees. Fees for the Service shall be as described on your account page. You are responsible for the accuracy of such fees. NoFraud reserves the right to change fees with 30 days' notice to you. Unless NoFraud implements special billing arrangements for your account, you agree to pay for all services in advance. You may request disbursement of any positive balance on your account at any time. Should your account carry a positive balance at the time of your services and account termination, said amounts shall be disbursed 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 Default. You will reimburse NoFraud for any fees and charges incurred by NoFraud due to any declined service charge or returned ACH. 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.
5.4 Rate Sheet. Any Rate Sheet duly executed by you and NoFraud is hereby incorporated by reference herein. Upon any conflict between said Rate Sheet and this Agreement, the Rate Sheet shall control with respect to the subject matter therein. For the avoidance of doubt, “Agreement” shall be interpreted to include such Rate Sheet. If no Rate Sheet has been executed, the Details specified in your customer portal page shall control.
5.5 Customer Portal. Feature elections, protection limits, fee amounts, and other services details ("Details") may be specified within your customer portal page. Such details are hereby incorporated by reference herein. Should any conflict arise between such Details and the contents of any duly executed Rate Sheet, the Details found on your customer portal page shall control.
6. LICENSE GRANTS.
6.1 NoFraud's License Grant. For the duration of the Service Term, 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 in order to utilize the Service, solely for your internal business purposes. You shall not be granted any other rights or license to the NoFraud Software, Service, NoFraud name, logo, trademark or other identifiers ("NoFraud IP"). 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 or Service in any form. The NoFraud IP belongs to NoFraud and is protected by applicable intellectual property laws.
6.2 Restrictions on NoFraud's License Grant. 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 the Service Term, the license and right to use such materials is automatically terminated.
6.3 Trademark License. Subject to NoFraud's compliance with the terms and conditions of this Agreement, you hereby grant to NoFraud a non-exclusive, non-transferable, royalty-free license, to use Your Marks for the purpose of marketing NoFraud's services. Such marketing activities may include, but are not limited to, NoFraud's publicizing your election of NoFraud as a service provider by way of marketing materials, internet content, and through other channels.
NoFraud acknowledges and agrees that you own Your Marks and that any and all goodwill and other proprietary rights that are created by or that result from NoFraud's use of Your Marks hereunder inure solely to your benefit. NoFraud will at no time contest or aid in contesting the validity or ownership of any of Your Marks or take any action in derogation of your rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any of Your Marks.
"Your Marks" means your trademarks, trade names, service marks, and service name.
7.1 Each party agrees to: (a) hold in strict confidence all Confidential Information as defined below; (b) use the Confidential Information solely as necessary for use or provision of the Service; and (b) not to transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to its directors, officers, employees and agents who have a bona fide need to know such Confidential Information to fulfill obligations hereunder and who are bound by confidentiality obligations at least as restrictive as the terms of this Agreement ("Representatives").All Confidential Information will remain the disclosing party’s exclusive property. All Confidential Information must be deleted by the Receiving Party upon the termination or expiration of this Agreement. Notwithstanding the foregoing, NoFraud may retain Confidential Information for the duration and to the extent required to enforce its chargeback protection policy and to prevent the abuse thereof; and NoFraud may disclose your Confidential Information to the extent required by statutory or regulatory authority or court order. Each party will implement and maintain reasonable security procedures and practices designed to protect the Confidential Information from unauthorized use, modification, or disclosure.
7.2 "Confidential Information" means all information relating to the disclosing party, its affiliates, and the Service disclosed or otherwise revealed to the receiving party by the disclosing party or its affiliates, including but not limited to technical, business, financial and marketing information, personally identifiable subscriber or customer information and the terms and conditions of this Agreement (and the existence of this Agreement), in each case, regardless of whether marked as confidential and irrespective of the form in which it is disclosed, but excluding any information that:
7.2.1 is at the time of disclosure or becomes after such disclosure publicly available without breach of this Agreement or any other confidentiality obligation of the receiving Party or its Representatives or others to whom it is entitled to disclose in accordance herewith, and through no act or omission of the receiving Party or its Representatives or any others to whom it is entitled to disclose in accordance herewith;
7.2.2 was demonstrably in the possession of the receiving Party prior to receiving it from the disclosing Party or such Affiliate and is not known by the receiving Party to be the subject of any obligation of confidence of any kind;
7.2.3 the receiving Party can demonstrate was developed by it independently and without use of or reference to the information of the disclosing Party or such Affiliate; or
7.2.4 the receiving Party receives in good faith without an obligation of confidence of any kind from a third-party who is under no confidentiality obligation to the disclosing Party or such Affiliate.
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, including but not limited to the necessary consents, rights, and/or licenses to allow NoFraud to make use of the personal data of your customers to provide the Service and to contact your customers with respect to the Services, including but not limited to via e-mail, text message, and/or telephone; 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.Personal data may include, but not be limited to, email address, first name, last name, birth date, age, email address, company, job title, photo, website URLs, social network user IDs, instant messenger handles, IP address, and the person's transaction information. For the avoidance of doubt, you shall obtain your customer's express consent with respect to NoFraud's contacting such Customers via e-mail, text message, or telephone with respect to the Services. If you are integrating the Service pre-gateway and not providing AVS (address verification services) data, zero dollar ($0) authorizations may be placed on Customers’ credit cards in connection with the provision of the Service. You represent and warrant that you have the necessary consents of your Customers to place such authorizations.
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.
8.7 No Backup. We have no obligation to back up any personal data and the personal data we store may be deleted at any time.
8.8 Personal Data License Grant. You hereby grant to NoFraud during the term of the Agreement, and you represent and warrant that you have the right to grant, for the sole purposes of exercising our rights and performing our obligations under this Agreement on your behalf(collectively, to "Process"), an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, transferable, sublicensable license to the personal data of each of your customers. To the extent that an agreement between NoFraud and any of NoFraud's third-party providers requires NoFraud to grant a license in the personal data to such third-party provider, the scope of the license set forth in the foregoing sentence shall be deemed to include the rights necessary to enable NoFraud to grant such license.
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 you 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 warranty or 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/or (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 an e-commerce transaction authenticated and approved by utilizing the authentication procedures (as amended, supplemented or modified from time to time) of NoFraudoccurring during the Service Term (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.Chargeback Protection only covers transactions received, screened, and marked in the NoFraud portal as a Pass.
For the avoidance of doubt, transactions where the credit card is present or that are otherwise categorized as a card-present transactions are not e-commerce transactions and are thus not eligible for Chargeback Protection.
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 a credit in the amount subject to chargeback by a credit card issuer (the "Credit Amount") within 30 days of NoFraud's determination that you are entitled thereto. 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 per Qualified Transaction exceed the per transaction limit specified in your NoFraud Rate Sheet or within your online customer portal; and if no such limit is specified, in no event shall the Credit Amount per Qualified Transaction exceed $5,000. Set forth below are the sole chargeback reason codes pursuant to which customer may be eligible to the benefits hereunder, subject to all of the terms and conditions contained herein. All amounts that Client is entitled to receive under the Chargeback Protection Policy shall be provided in the form of a credit to Client's Account. Notwithstanding anything to the contrary herein, your chargeback protection election and maximum Credit Amount per Qualified Transaction shall be as described within your Rate Sheet or as specified in your customer portal in accordance with Sections 5.4 and 5.5 above.
Eligible Chargeback Reason Codes: Chargebacks that do not fall under an eligible code shall not be entitled to a Credit Amount.
Fraud (Card Not Present)/No Cardholder Authorization
Transaction Not Recognized
11.3 Conditions. In order to be entitled to the Credit Amount, all of the following conditions (the "Conditions") shall have been satisfied, as may be determined in NoFraud's absolute discretion.
11.3.1 You shall have elected to activate Chargeback Protection either by opting to use the Chargeback Protection feature via the NoFraud Software, it being understood that, you may request to terminate the Chargeback Protection services at any time for any reason and it being further understood that if you activate the Chargeback Protection by using the Chargeback Protection feature via the NoFraud Software, NoFraud may charge an additional fee, due immediately at the time the Chargeback Protection feature is so activated;
11.3.2 To the extent that customer requests for a reimbursement of the Credit Amount for any sale of goods that have been physically delivered, customer shall submit to NoFraud satisfactory evidence that such goods shall have been delivered in accordance with the terms of the applicable order;
11.3.4 You must provide all of your credit card transactions to be serviced by NoFraud. That is, you may not select any subset of your transactions to be excluded from being served by NoFraud;
11.3.5 You have complied with the policies and procedures set forth in Section 11 hereof;
11.3.6 You are otherwise in full compliance, and no event of default or potential event of default shall have occurred and is continuing, with respect to any agreement entered into between you and NoFraud;
11.3.7 You have given authorization to NoFraud to communicate with the payment processor and otherwise access the applicable merchant portals and other third-party platforms on the merchant's behalf to dispute chargebacks. NoFraud must be permitted to dispute chargebacks on behalf of a merchant, such that failure to give authorization or if a merchant proceeds to dispute chargeback without involvement of NoFraud, such action shall disqualify the transaction from Chargeback Protection; and
11.3.9 Upon resolution of a chargeback claim or dispute, you must deliver a resolution copy within 7 calendar days;
11.3.10 If you are using a Content Delivery Network (CDN) or another form of proxy, you must ensure that you are sending the customer's IP to NoFraud and not that of the CDN/Proxy;
11.3.11 Companies selling digital goods will have a waiting period before they are eligible for Chargeback Protection. Please contact NoFraud for more details;
11.3.12 Account must be on Live mode (not test mode) to be eligible for coverage; and
11.3.13 Orders costing $2,000 or more (including all taxes and shipping charges) shall not be eligible for Chargeback Protection unless a signature of the recipient is required and received upon delivery.
11.3.14 Chargeback Protection includes the ability to cancel transactions that are unfulfilled. Cancelling of transactions that are not unfulfilled shall be considered the misrepresentation of material information and shall be grounds for immediate account suspension without advance notice, at NoFraud’s sole discretion.
11.3.15 Any misrepresentation of material information, including but not limited to the submission of incorrect volumes, shall be grounds for immediate account suspension without advance notice, at NoFraud’s sole discretion.
11.3.16 Chargeback Protection is not available for purchases of digital goods absent the express prior written approval of NoFraud. Such digital goods shall include, but not be limited to, gift cards, digital media, and online subscription fees.
If such approval has been received, Chargeback Protection on purchases of such digital goods shall be subject to: a.) no shipping data being provided in connection with the purchase; and b.) no physical items being combined in the same order with the digital goods.
11.4 Exclusions. The following shall be expressly excluded from, and customer shall not be entitled to any, credit of the Credit Amount for:
11.4.1 Orders placed via telephone without using the NoFraud Phone Screening function;
11.4.2 Goods that have been delivered to a location other than the location specified on the original purchase order, whether due to errors made by customer, shipping company or based on the request from your customer to ship to an alternative location;
11.4.3 Orders without proof of delivery;
11.4.4 Chargebacks from a transaction that was on the customer whitelist;
11.4.5 Chargebacks resulting from any errors made by you, your customers, credit card issuers or processors, or common carriers or shipping companies, including without limitations, duplicate charges, unprocessed refunds, non-conforming goods or failure to deliver the goods, and defective goods;
11.4.6 Goods that have been recovered and have been returned to your customer;
11.4.7 Chargebacks from a transaction that NoFraud did not screen;
11.4.8 Chargebacks due to an integration error;
11.4.9 Transactions screened while on Test Mode or otherwise not fully active;
11.4.10 Transactions processed via PayPal Guest Checkout;
11.4.11 Transactions on which NoFraud requested that the package be intercepted before delivery and the request was not fulfilled;
11.4.12 Chargebacks disputed by the merchant and not by NoFraud;
11.4.13 Any instance where the Chargeback amount has already been received by you, even if not paid by NoFraud; and
11.4.14 Any instance where the customer's data has been deleted in compliance with a request by you or your customer.
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.
11.6 Alternate Payment. If the customer initiates a chargeback and the customer offers NoFraud payment in an alternate form (an "Alternate Payment"), NoFraud may collect such Alternate Payment at its sole discretion. If NoFraud does collect such Alternate Payment, the merchant will be reimbursed the chargeback amount, minus any fees or penalties assessed on the Alternate Payment.
If NoFraud declines to accept the Alternate Payment and the merchant accepts the Alternate Payment instead, NoFraud's obligations with respect to chargeback amounts shall be satisfied in full and the merchant shall have no claim against NoFraud for any such amounts.
11.7 Payment by Check. Notwithstanding anything to the contrary within the Agreement, in any instance where the customer pays by check (whether physical or electronic), the goods or services paid for shall not be released to the customer until said check is properly received and the funds remain cleared for not less than five (5) business days. You will provide or otherwise make commercially reasonable efforts to make available to NoFraud, copies of all checks used for payment with a value of over $500.
11.8 Other Disputes. Notwithstanding anything to the contrary herein, you hereby acknowledge and agree that you shall have no right to dispute any transaction for which the personal data of the customer has been deleted, so long as such deletion was at your request or the request of the customer.
11.9 Invoice for Chargeback Payments Sent to Customers. In any instance where NoFraud has: a.) paid or otherwise credited amounts resulting from a chargeback claim or dispute to you; and b.) you have received compensation in relation to that same chargeback claim or dispute from a third-party (the "Returned Charges"), NoFraud shall invoice you for, and you shall pay to NoFraud, for the Returned Charges.
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 12.2 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 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 instances. 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. This Agreement shall in all respects be interpreted, construed in accordance with and governed by the laws of the State of New York, without regard to its conflict of law rules.
12.10 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 12.10, 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.
12.11 No Class Action. YOU AND NOFRAUD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and NoFraud agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
12.12 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 website 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.
12.13 Survival. Sections 3.3, 5, 6.3, 7, 8, 9, 10, 11 and 12 will survive the termination of this Agreement.
12.14 Sub-Contractors. NoFraud may, at its sole discretion, engage third-party sub-contractors in connection with the provision of the Services, including without limitation the processing of Chargebacks. NoFraud shall limit access to your and your customer's data to sub-contractors the extent necessary for such sub-contractors to perform its obligations, and shall prohibit sub-contractors from using such data for any other purpose.
12.15 Feedback. If you provide us with identification of any potential errors in, or improvements to, the Software or the Service (including, without limitation, providing any feedback with respect to any person's investigatory profile on the Service) ("Feedback"), you hereby grant us the unrestricted right to use your Feedback, including the right to use your Feedback to improve the Software and the Service and create other products and services. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to us any Feedback that you consider to be confidential or proprietary.