NoFraud

Merchant Terms of Service

Updated January 11, 2022

By accepting these Merchant Terms of Service (the “Agreement”) or by accessing or using the Service (as defined below) provided by No Fraud LLC, a Delaware limited liability company (“NoFraud”),  you are agreeing to be bound by this Agreement. If you are using the Service on behalf of a company, you represent that you are authorized to bind such company to this Agreement, and all references to “you” and “your” shall be construed to apply to the company you represent. You may not use or access the Service unless you agree to this Agreement. By clicking on “I Accept”, “I Agree”, “Sign Up”, or “Notify Me” or by otherwise using the Service or accepting this Agreement, you agree that you are bound by the terms of this Agreement. If you do not accept this Agreement, you are not authorized to use the Service.

1. YOUR AGREEMENT. 

1.1 Modifications. NoFraud may modify this Agreement at any time upon notice to you.  You agree that e-mail notice, or an announcement posted in the Merchant Portal (as defined herein) shall be considered sufficient notice to You of such modifications.  It is your responsibility to check for updates to this Agreement.  In addition, we may change the manner in which we provide any aspect of the Service, including any process, software, or other technology used to perform the Service.   If you do not accept such modifications, your sole and exclusive remedy is to discontinue using the Service. 

1.2 Structure of the Agreement. If you have registered with NoFraud to access a free trial, then there are no fees or charges associated with your use of the Service on the basis of such free trial.  If you elect to purchase any Service, then you will be required to execute an order form with NoFraud that will set forth the fees and charges associated with your use of the Service. Any order form duly executed by you and NoFraud (the “Order Form”) forms a part of this Agreement and is hereby incorporated by reference herein.  In the event of any conflict between the Order Form and the terms and conditions of this NoFraud Merchant Terms of Service, the Order Form shall govern.   

1.3 Scope of Service. Subject to the terms and conditions of this Agreement, including your Order Form, NoFraud will provide the following services to the extent set forth in your Order Form: (i) authentication of payment information provided by your e-commerce customers (“End Users”) to you (the “Authentication Service”) (ii) NoFraud’s hosted checkout services (“Hosted Checkout”); and/or (iii) additional fraud review services provided by NoFraud’s fraud analytics team (“Analytics Service”).  The Authentication Service, Hosted Checkout, and Analytics Service, as received by you from NoFraud pursuant to the Agreement, may be referred to in this Agreement as the “Service”.  Notwithstanding anything to the contrary in this Section 1.3, in the event that you are receiving the Authentication Service on a free trial basis, your use of the trial subscription will be subject to the terms set forth in your account details in the Merchant Portal and this Agreement.  For clarity, NoFraud is not a bank and is not offering banking services, and NoFraud is not acting as your payment processor or payment gateway.  

2. REGISTRATION. 

2.1 Registration Requirements. To use the Service (i) you must have a valid e-mail address and provide complete and accurate registration details and information;, (ii) be authorized to do business in the United States; (iii) 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 (iv) not use the Service if any applicable laws in your country prohibit you from doing so in accordance with this Agreement. The information provided by you during registration is incorporated herein by reference; provided, however, that any conflicting information contained in any subsequent, valid Order Form between you and NoFraud shall control over any registration information previously provided by you. As necessary, you agree to update your registration information to ensure that it is accurate and complete. NoFraud may provide the Service to a registrant in its sole discretion and reserves the right to refuse to provide the Service to any person or entity at any time.      

2.2 Your Responsibilities. You acknowledge and agree that you are solely responsible for obtaining payment gateway services and merchant acquiring services in connection with the transactions used with the Service. You are responsible for obtaining all consents from, and the full cooperation of, your payment gateway, merchant acquiror and any other third parties integrating with the Service on your behalf (collectively, “Merchant Providers”) as necessary for you to receive the Service. You will complete any set-up and configuration requirements identified by NoFraud as a condition to receiving any Service. In no event will NoFraud be liable under this Agreement if NoFraud shares transaction information or data with any of your Merchant Providers on your behalf.  You are fully responsible for the security of data on your e-commerce site or mobile application (collectively, the “Site”) or data otherwise in your possession or control (collectively, your “Channels”). You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, card, or transaction information (defined as “Payment Data”) in connection with your Channel(s). You are solely responsible for compliance with any laws, rules or regulations applicable to your business. You specifically agree that at all times you will be compliant with all Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS) (collectively, the “PCI Standards”) which are applicable to your use of the Service.  NoFraud reserves the right to require you to provide NoFraud with documentation evidencing your compliance with the PCI Standards in order to receive or continue to receive the Service.  

2.3 NoFraud Technology.  We may make available certain technology to integrate into your Sites to enable you to use certain aspects of the Service, including our application programming interfaces (“APIs”), pixels or JavaScript snippets, software development kits and other technologies (the “NoFraud Technology”). Such NoFraud Technology will enable NoFraud to collect Device Data (for example, through cookies and similar technologies) and receive End User Data (for example, data submitted, uploaded, or otherwise sent through NoFraud’s API) from the Sites.  You will implement the NoFraud Technology (and any updates) in accordance with relevant NoFraud documentation made available to you and our reasonable instructions.  You will promptly cease using NoFraud Technology and remove all NoFraud Technology from your Sites upon termination of this Agreement.  You understand and acknowledge that the NoFraud Technology may continue to collect data until removed from the Sites.  You further acknowledge and agree that we may retain and use End User Data and Device Data for purposes of providing, analyzing and improving the Service, including combining or aggregating End User Data and Device Data with data collected or obtained from other merchants or third parties for analytics purposes (the “Permitted Purpose”); provided that, except where required by applicable law, NoFraud will not disclose the End User Data to another merchant or third party unless authorized or requested by the relevant End User.  In no event will you be identified to third parties without your prior written consent.  For purposes of this Agreement, (i) “Device Data” means any and all data collected through NoFraud cookies or other NoFraud Technology integrated into any Site, and (ii) “End User Data” means data about your Site, End Users or their transactions that you submit or upload to NoFraud through any NoFraud API.

2.4 Authorized Users. Only users authorized by you (each, an “Authorized User”) may use the Service. Any violation of this Agreement by an Authorized User, including any of your affiliates that use the Service, shall be deemed to be a violation by you of this Agreement.  You are solely responsible for the security, confidentiality and proper creation, use and termination of all Authorized User accounts, including all user names and passwords associated with your Authorized User accounts (“Login Credentials”).  You are responsible for all use of the Service using your Login Credentials, whether or not authorized by you, except to the extent caused by our gross negligence or intentional misconduct.  You shall immediately change your Login Credentials and notify NoFraud if you become aware (or have reason to suspect) that your Login Credentials have been compromised.  

3. TERM AND TERMINATION.

3.1 Term of Agreement. This Agreement is effective upon the date you accept it (as described herein) and shall remain in effect until terminated in accordance with the Agreement (the “Term”).

3.2 Term of Service.  If you have executed a valid Order Form, the term of your subscription to the Service shall begin upon your acceptance of such Order Form and shall continue for the period set forth in such Order Form (the “Service Term”).  Upon expiration, the Service Term shall automatically renew for additional renewal periods of the same length as the Service Term; unless you or we provide written notice to the other of non-renewal of any Service Term not less than thirty (30) days prior to the expiration of the then-current Service Term.  

3.3 Termination of the Service. NoFraud may terminate this Agreement or suspend the Service for any reason and at any time, provided that NoFraud will provide you with at least 30 days’ notice prior to terminating this Agreement.  You may terminate the Service upon NoFraud’s failure to cure a material breach of the Agreement within thirty (30) days of receiving written notice thereof from you or by providing notice of non-renewal in accordance with Section 3.2.  NoFraud will not be liable to you for reimbursement of fees, cost of cover, or other damages of any kind in connection with any termination or suspension of the Service.

3.4 Effect of Termination. Termination of this Agreement other than by you in accordance with Section 3.3 does not relieve you of your obligation to pay all fees, charges, or other payment obligations that have accrued through the date of termination or any minimum fee commitment set forth in any Order Form.  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 to NoFraud in order for NoFraud to provide the Service to you, including in the case of the Authentication Service, personally identifiable information of your End Users. We are not responsible for any inaccuracy or error in the Service which results from or is related to any inaccuracy or error in the information that you provide to NoFraud.  You are solely responsible for obtaining and maintaining network connections and telecommunications links from your systems and the systems of Merchant Providers to NoFraud and all problems, conditions, delays, delivery failures as well as all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet. 

5. PRICING AND PAYMENT.

5.1 Fees. There are no fees and charges associated with your use of the Service if you are using the Service on a trial basis. Otherwise, the fees, charges and payment terms for the Service during the Service Term will be set forth in your Order Form.  We may notify you of changes to the fees, charges and payment terms for the Service through your account page in the Merchant Portal. You are responsible for confirming the accuracy of such fees, charges and payment terms on your account page in the Merchant Portal.  All fees, including any minimum monthly commitment for the Service Term, are non-refundable, unless expressly set forth otherwise in the Agreement. 

5.2 Taxes. All fees are exclusive of any taxes, duties or other amounts, including without limitation, value added and withholding taxes. Any taxes related to the Service will be paid by you unless you present an exemption certificate acceptable to the applicable taxing authorities.  For clarity, it is your responsibility to determine any applicable sales, use, value-added, excise, export or other taxes that apply to the sale of your products and services and/or the payments you receive from your End Users, and for remitting such taxes to the relevant taxing authorities.

5.3 Payment Default. In connection with any of your payments to NoFraud, you will reimburse NoFraud for any fees or charges incurred by NoFraud due to any method of payment that is declined, including 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 Merchant Portal.  Feature elections, protection limits, fees and charges, and other details of your Service may be specified within the merchant portal page that NoFraud makes available to you on your successful registration for any Service (the “Merchant Portal”).     

5.5 Dormant Accounts.  Your account may be deemed as dormant after six (6) months of inactivity, and dormant accounts with no balance may be closed by NoFraud in its discretion.  If your dormant account has an available balance, then NoFraud may assess reasonable inactive account maintenance fees which will be deducted from your dormant account’s available balance.  Such fees will not exceed the value of any available balance of your dormant account. 

6. LICENSE TO THE SERVICE; USE OF TRADEMARKS.

6.1 NoFraud’s License Grant. Subject to your compliance with this Agreement, NoFraud grants you a personal, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Service and NoFraud’s software, including any APIs, documentation, support pages, Analytical Results (as defined below) and any updates thereto provided to you by NoFraud, solely to communicate with NoFraud’s systems in order to utilize the Service for the purpose of detecting and preventing fraud, security threats or other illegal or malicious behavior, risk management and/or managing and responding to chargebacks (as applicable) and solely for your internal business purposes in accordance with the terms of this Agreement and any documentation made available to you through the Merchant Portal. You shall not be granted any other rights or license to the NoFraud’s software, Service, NoFraud name, logo, trademark or other identifiers, or the Analytical Results (collectively, the “NoFraud IP”). You further acknowledge that at no time shall you be entitled to download, distribute, install or otherwise redistribute the NoFraud IP in any form. The NoFraud IP belongs to NoFraud and is protected by applicable intellectual property laws. As used in this Agreement, “Analytical Results” means any output of the Service provided by NoFraud to you which results from NoFraud’s proprietary modeling, as well as analysis of the Licensed Data alone or in combination with NoFraud’s data, which may include a score or other result for an End User transaction and the reason for such score or other result and analysis of improvements in your transaction approval rate or any reduction in your fraud rate, manual review costs or chargebacks. You are solely responsible for ensuring that your use of the Service is in accordance with all applicable laws and for any actions or decision that you make in connection with your use of the Service and NoFraud does not assume any responsibility or liability for your actions or decisions. 

6.2 Usage Restrictions. Without limiting the foregoing, except as expressly approved by NoFraud in writing, you may not: (i) transfer any of your rights to use the Service; (ii) sell, rent, lease or share the Service or the results thereof; (iii) permit any person who is not an Authorized User to use or access the Service; (iv) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the NoFraud’s software; (v) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service; (vi) access all or any part of the Service or information included therein in order to build, improve upon, develop a product or service which competes with the Service; (vii) use the Service other than for the purpose described herein; (viii) load or penetration test the Service in any way that is, or could reasonably be expected to be, detrimental to NoFraud’s ability to provide services to any other merchant or End User; (ix) introduce any malicious code, such as viruses, worms, time bombs, or Trojan horses into the Service; (x) provide NoFraud with any sensitive personal information, including full financial account information, full payment card information, government identification numbers, account passwords, health-related information, information that relates to children under the age of 13 (or in the European Economic Area, under the age of 16), or any information that is deemed “sensitive” or under a “special category” under applicable laws; (xi) use the Service for purposes not contemplated by the Agreement, including for purposes prohibited by the Fair Credit Reporting Act (FCRA) and the Equal Credit Opportunity Act (ECOA), such as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance, housing or employment in a way that facilitates discrimination or in any other way that may violate applicable law; (xii) benchmark, test the capacity or limitations of, or interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service; (xiii) participate in spidering, screen-scraping, database-scraping, harvesting e-mail addresses, wireless addresses, other contact or Personal Data (as defined below), or other content made available through the Service, or use any other automatic means of obtaining lists of users or other information from or through the Service, including without limitation any information residing on any server or database connected to the Service; (xiv) circumvent any access or use restrictions, data encryption, or content protection related to the Service, including accessing or using any undocumented software or any software not in strict compliance with any documentation provided to you by NoFraud; (xv) use the Service or provide data to NoFraud in a manner that violates any applicable law, ordinance, regulation or administrative order; or (xvi) permit any other person or entity to do any of the foregoing.

6.3 Termination. Upon any termination of the Agreement, your license to use the Service and any NoFraud IP will automatically terminate.

6.4 Trademark License. You hereby grant to NoFraud a non-exclusive, non-transferable, royalty-free license to use Your Marks (as defined below) 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, any improvement in your transaction approval rate, any reduction in your fraud rate or manual review costs, or any added revenue; including 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.  “Your Marks” means your trademarks, trade names, service marks, and service names.

7. CONFIDENTIALITY.

7.1 NoFraud and you each agree to: (i) maintain the confidentiality of Confidential Information of the disclosing party; (ii) employ safeguards to protect the Confidential Information of the disclosing party from unauthorized use, modification, or disclosure, using at least as great a degree of care as it uses to protect its own information of a similar nature or importance, but in no event using less than a commercially reasonable standard of care; and (iii) limit the disclosure of such Confidential Information to the disclosing party’s directors, officers, employees, contractors, agents and other representatives (“Representatives”) who have a bona fide need to know such Confidential Information and who are bound by confidentiality obligations at least as restrictive as the terms of this Agreement . You further agree to use Confidential Information solely to the extent necessary for you to use the Service or as otherwise expressly permitted by the Agreement.   Notwithstanding the foregoing, either party may disclose Confidential Information to the extent required by law, a regulatory authority with jurisdiction over a party, subpoena or court order, provided the receiving party promptly notifies the disclosing party (unless prohibited by such legal or regulatory authority), so that the disclosing party may seek a protective order. Except as otherwise provided in the Agreement, all Confidential Information will remain the disclosing party’s exclusive property.

7.2 “Confidential Information” means all information relating to the disclosing party’s or its affiliates’ business which is disclosed or otherwise revealed to the receiving party by or on behalf of the disclosing party, including but not limited to technical, business, financial and marketing information and the terms and conditions 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 by a receiving party or its Representatives;

7.2.2 was demonstrably in the possession of the receiving party prior to receiving it from the disclosing party or its affiliates or agents 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 Confidential Information of the disclosing party or its affiliates or agents; or

7.2.4 you receive in good faith without an obligation of confidence of any kind from a third-party who is under no confidentiality obligation to NoFraud or its affiliates.

8. REPRESENTATIONS AND WARRANTIES; COVENANTS.

8.1 You represent and warrant to NoFraud that: (i) 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 (ii) the name provided by you when you registered or signed up for Service is and continues to be your name or business name under which you sell goods and services and all of the other information provided by you to identify your company is accurate and complete.  

8.2 If you are receiving Authentication Service and you are integrating the Service pre-gateway and not providing AVS (address verification services) data from a payment gateway, then you agree that NoFraud may place zero dollar ($0) authorizations on your End Users’ payment cards in connection with the provision of the Service.  You represent and warrant that you have obtained the necessary consents of your End Users for NoFraud to place such zero dollar authorizations on your End Users’ payment cards.  

8.3 You represent and warrant and agree that at all times during your use of the Service (i) you will use the Service only for transactions related to your business and not on behalf of any other person or entity, (ii) you and all transactions initiated by you and your use of the Service will comply with all laws and regulations (including applicable privacy laws and regulations) applicable to you, and (iii) 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.

8.4 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 DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SERVICE, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOFRAUD DOES NOT REPRESENT OR WARRANT THAT THE SERVICE 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.

8.5 Privacy Policy. NoFraud’s End User Privacy Policy, which may be updated from time to time, is available at https://www.nofraud.com/end-user-privacy-policy/.  You agree to disclose the use of the Service in your privacy policy made available to your End Users.

8.6  Data Privacy. You hereby represent and warrant that you have all rights and permissions necessary to lawfully share or otherwise make available all information relating to an identified or identifiable natural person (“Personal Data”) with NoFraud for the purposes of the Service and that the use and disclosure of such Personal Data in accordance with this Agreement does not violate any third-party rights or any laws, regulations, or legal obligations imposed by any third party. In addition, you hereby represent and warrant that all Personal Data you share with or make available to NoFraud in connection with your use of the Service has been and will be obtained by you, and shared with or made available to NoFraud, in compliance with all applicable laws, including, without limitation, ensuring that (i) any notices have been provided to and necessary consents have been obtained from individuals to use and disclose their Personal Data for the provision of the Service, including to facilitate Chargeback Protection in accordance with your Order Form and the prevention of abuse thereof; and (ii) reasonable steps have been implemented to ensure that Personal Data is accurate, complete and up-to-date.  You shall be responsible for, to the extent required by applicable law, (i) obtaining consent from your End Users to collect, share or use their Personal Data in connection with the Service, (ii) the provision of notices to your customers including your End Users, (iii) obtaining any necessary consent to use automated decision making, cookies and other automated collection technologies on your Sites in connection with the Service, (iv) providing your customers including End Users with the ability to exercise any access rights with respect to your processing of their Personal Data, (v) any data transfer mechanisms required by applicable law to transfer such Personal Data to NoFraud in connection with the Service, and (vi) any requirements or limitations regarding the processing of Personal Data of children or minors.  NoFraud will reasonably cooperate with you in facilitating data subject requests and rights required by applicable law. NoFraud may disclose information pursuant to a data subject request as required by law or in its sole discretion. 

8.7 Personal Data Processing. To the extent that you have customers including End Users who reside in the EU or UK and the processing of their Personal Data is subject to the EU or UK General Data Protection Regulation (“GDPR”), the parties acknowledge and agree that each of them is acting as a separate data controller in their own right with regard to their respective processing of such Personal Data in connection with the Service. To the extent NoFraud receives any Personal Data subject to the CCPA in connection with the Service, the parties acknowledge and agree that (i) the Personal Data is disclosed to NoFraud for the business purposes specified in this Agreement, and (ii) NoFraud will not sell the Personal Data or, unless permitted by applicable law, retain, use or disclose the Personal Data for purposes other than providing the Service or as required by applicable law.  

8.8 Due Diligence and Remedial Action. You will conduct reasonable due diligence into any End User complaint that you receive relating to your use of the Service, such as any action or decision that you make based on the provision of the Service to you. You represent, warrant and agree that you will take appropriate action in response to any such End User complaint if you determine that such action is appropriate to correct any action or decision that you make based on the provision of the Service to you. 

8.9 No Backup. NoFraud has no obligation to back up or retain any data, including any End User Data, that NoFraud may obtain from you or on your behalf in connection with the provision of the Service.

8.10 Licensed Data. You hereby grant to NoFraud and its affiliates and subcontractors, and you represent and warrant that you have the right to grant, an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, transferable, sublicensable license to the data received by NoFraud from, or made available by, you or on your behalf regarding End Users (the “Licensed Data”) for the purposes of NoFraud providing the Service to you and NoFraud exercising its rights under this Agreement, subject to NoFraud’s End User Privacy Policy as amended by NoFraud from time to time.  Notwithstanding anything to the contrary in this Agreement, you agree that NoFraud may provide Licensed Data to third parties in order for NoFraud to provide the Service and to exercise its rights under this Agreement, and you consent to such disclosure.  You hereby agree that NoFraud may retain the Licensed Data internally for the benefit of all of NoFraud’s customers for the purpose of detecting fraud, optimizing e-commerce solutions and similar service enhancing purposes and that such use shall not be limited by Section 7 hereof.

8.11 Contacts with End Users.  For each of your End Users that processes a transaction that is verified by the Service, you shall receive express prior written consent from such End User to send them correspondence regarding such transactions, including but not limited to via text message.  In receiving such consent, you shall include: 

  • A description of the type of correspondence they can expect.  E.g., text messages regarding goods purchased on your website.
  • The approximate number of messages they should expect to receive.  E.g., 3, 1 upon order, 1 upon shipment, and 1 upon delivery.
  • A link to your privacy policy.
  • Instructions on how to opt out from receiving messages (STOP instructions), as well as how they can get help information (HELP instructions). You can provide a link that contains detailed information about these instructions.

You shall not use the Service in connection with any End User transaction for any End User that has not provided such express prior written consent.

For the purpose of this Section 8.11, click-wrap consent received during the customer purchase flow shall be sufficient so long as it is explicit, conspicuous (displayed in conjunction with the “I accept” checkbox/button rather than behind a link), and otherwise meets the above requirements.

8.12  Use of Own Data.  For the avoidance of doubt, nothing contained herein shall limit any party’s rights to use and/or disclose any information or data that it owns or is otherwise already lawfully and independently in such party’s possession.

9. LIMITATION ON LIABILITY.

9.1 Limitations. Except for NoFraud’s obligations under Section 10.2 (Indemnification by NoFraud), NoFraud’s and its affiliates’ (and its and their respective 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 on which a claim is first asserted. Except to the extent you are eligible for Chargeback Protection, NoFraud and its affiliates (and its and their respective 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 NoFraud’s fees and charges.

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 Representatives) liability is limited to the greatest extent permitted by applicable law.

10. INDEMNIFICATION. 

10.1  Indemnification by You. You agree to defend, indemnify, and hold harmless NoFraud, its affiliates (and its and their respective Representatives) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (i) any actual or alleged breach of any representation, warranty or provision of this Agreement; (ii) your use of the Service; (iii) your obligations to pay amounts owed under this Agreement, including without limitation any fees, fines, penalties and attorneys’ fees; (iv) negligence or willful misconduct of your Representatives; and/or (v) all third-party indemnity obligations NoFraud incurs as a direct or indirect result of your acts or omissions.  NoFraud will have the right to participate in (but not control) the defense of any such indemnified claim, at its cost and expense, using counsel of its choosing.  You will not settle any indemnified claim without the prior written consent of NoFraud, not to be unreasonably withheld or delayed. 

10.2  Indemnification by NoFraud.  NoFraud agrees to defend, indemnify, and hold harmless you and your affiliates (and its and their respective Representatives) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to any third-party claims alleging infringement by the Service of any patent or copyright or misappropriation of any trade secret. The foregoing defense and indemnification obligations do not apply if (i) it is not clear from the third-party allegation that the Service is the basis of the claim against you; (ii) a claim against you arises from your use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by NoFraud, if the Service or use thereof would not infringe without such combination; (iii) a claim against you arises from a Service for which there is no charge; or (iv) a claim against you arises from your data, third-party applications, services or software or your breach of the Agreement.

11. CHARGEBACK PROTECTION.

To the extent set forth in your Order Form, you may be entitled to receive chargeback protection in connection with fraudulent or unauthorized charges on qualified transactions (“Chargeback Protection”).  The terms and conditions for receiving Chargeback Protection from NoFraud, if applicable, will be set forth in your Order Form.   For the avoidance of doubt, Chargeback Protection is available only  to merchants that have purchase Chargeback Protection and is not available in connection with any Service being used on a free trial basis.   

12. GENERAL.

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 including the acts and omissions of third parties not under the control of NoFraud.

12.2 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.  NoFraud may assign this Agreement at its sole discretion without notice to you.

12.3 Notices. NoFraud will provide all notices under this Agreement to you to the e-mail address NoFraud has on file and such notice will be deemed to have been given to you upon delivery. You are responsible for printing, storing, and maintaining your own records of such notices and any other Communications (as defined below) from NoFraud. 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 notices, 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 Communication or other document. NoFraud reserves the right to charge you a handling fee for any notices or other Communication or document that NoFraud physically mails to you at your request or because your e-mail address fails.  Any notices and other communications to NoFraud shall be sent to: notices@nofraud.com.

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 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.

12.7 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.

12.8. Fair Credit Reporting Act. You agree that NoFraud, is not a consumer-reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”), and that the Service provided to you hereunder does not constitute “Consumer Reports,” as defined in the FCRA. You will not use the Service to determine any of your customer’s eligibility for any product or service to be used by a customer for personal, family or household purposes. You will not use the Service in whole or in part: (i) as a factor in establishing a customer’s eligibility for credit; (ii) as a factor in establishing a customer’s eligibility for insurance; (iii) for employment purposes; (iv) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; or (v) in connection with any permissible purpose as defined by the FCRA.

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 Agreement. 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 ARBITRATOR 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 IS 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.

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.

12.11 Survival. Sections 3.3, 3.4, 4 – 10, and 12 will survive the termination of this Agreement.

12.12 Subcontractors. NoFraud may, at its sole discretion, engage third-party subcontractors in connection with the provision of any part the Service. NoFraud shall limit subcontractor access to you and your End Users’ data to the extent necessary for such subcontractors to perform its obligations, and shall prohibit subcontractors from using such data for any other purpose.

12.13 Feedback. If you provide us with identification of any potential errors in, or improvements to the Service (“Feedback”), you hereby grant us the unrestricted right to use your Feedback, including the right to use your Feedback to improve the Service and create other products and services. We will treat any Feedback you provide to us as non-confidential and non-proprietary.

12.14.  Electronic Communications.  By registering for the Service and accepting the terms of this Agreement, you are consenting to transact with NoFraud electronically.  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, responses to claims, and other End User communications that NoFraud may be required to provide to you by law (collectively, “Communications”) in electronic format, including through the Merchant Portal, subject to Section 12.3 (Notices). 

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