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CLEARSALE CUSTOMER AGREEMENT

These terms and conditions govern your use of the ClearSale service, software and Webservice (“Services”). By using Clearsale’s Services, You (“Client”) accept these terms and conditions in full.

WHEREAS Client seeks to contract the services offered by ClearSale to aid in the prevention of fraudulent transactions;

WHEREAS ClearSale provides fraud-prevention services to help protect businesses against fraud within different business segments and verticals; and

WHEREAS prior to the execution of this Agreement, Client accepted ClearSale’s proposal to provide fraud-prevention solutions, pursuant to the terms outlined therein and any other support documents executed by the Parties;

NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows:

A. DEFINITIONS.

Notwithstanding any other terms defined herein, the terms unpacked below shall be defined as follows for purposes of this Agreement:

  1. Application Programming Interface (API) – A set of clearly defined methods used to facilitate communication among several components.
  2. API Guide – The ClearSale Application Program Interface Guide refers to a manual, located on the ClearSale website, which explains the procedures employed by ClearSale’s Platform to interact with external systems.
  3. Application – ClearSale’s web application. A client–ClearSale server program that enables the client to interact with ClearSale’s Services.
  4. Chargeback – A disputed transaction that has already been charged to the consumer’s bank account, line of credit, or credit card, in exchange for the goods or services offered by the charging merchant, which may result in the forced return of the funds charged.
  5. Fraud Attack – A ploy or scam that leads to an abrupt increase in Fraud Attack rates, increasing the values of this index to numbers beyond expected standards, according to the market, business situation, and/or client profiles shall be solely and exclusively responsible for determining whether a Fraud Attack has taken place.
  6. Fraud Prevention – An activity or series of activities designed to prevent or hinder the processing of a transaction not authorized by the consumer to whom the transaction was charged.
  7. Fraudulent Transaction – A transaction charged to Client’s credit or debit card, line of credit, or bank account that was either not authorized by Client or authorized by Client through fraudulent or otherwise deceitful means or methods.
  8. Fraud Index (“FRD”) – ClearSale’s Fraud Index is calculated quarterly by dividing the value of the total number of fraudulent transactions recommended for approval by ClearSale (“FTs”) by the value of the total number of transactions analyzed by ClearSale (“TTs”) during the same time period. Therefore, the ClearSale Fraud Index = [FTs ($)] ÷ [TTs ($)].
  9. Personal Data – shall have the same meaning as its correlative term under Data Protection Laws.
  10. Service-Level Agreement – Refers to ClearSale’s commitment to Client, to meet a specific level of quality, availability, or responsibility, which is legally binding.
  11. Service Performance Level – Refers to the level of ClearSale’s performance while this Agreement is in effect.

B. SERVICES.

ClearSale offers outsourced fraud management solutions (“Services” or “Webservice”). ClearSale uses market and Client’s data to generate a customized and comprehensive model to predict the trustworthiness of a potential transaction, which allows businesses to restructure their fraud prevention strategies to avoid the misapplication of their assets and minimize false declines produced by suspicion of fraud.

ClearSale is not a consumer agency, as defined by the Fair Credit Reporting Act (“FCRA”). That ClearSale recommends that Client either accept or decline a specific transaction is not equivalent to rating the Client as a consumer. ClearSale only detects potential risks of identity theft in a given transaction, and its feedback may not be used as a factor to establish a consumer’s eligibility (i) to obtain credit or guarantee for primarily personal, family, or household purposes, (ii) for employment purposes, or (iii) any other purpose authorized under the FCRA.

ClearSale provides its Fraud-Prevention Services in accordance with Client’s specific needs, as hereinafter described, and as set forth in the applicable executed Reseller Order. ClearSale’s Services fall into 3 (three) main solution categories which are described in detail below: (i) Chargeback Guarantee, (ii) Chargeback Protection; and (iii) Data Science Services.

Chargeback Guarantee and Chargeback Protection: Chargeback Guarantee and Chargeback Protection are solutions intended to help shield potential transactions against fraud by generating instant risk predictions, which are represented by a fraud score, i.e., a tool used to gauge the riskiness of a potentially fraudulent transaction before it is processed (“Fraud Score”). All transactions must go through the ClearSale platform, where they are scrutinized by various artificial intelligence tools and fraud rules (“Decision Tree”) and then cross-referenced with internal and outside (public) data sources (“Analyzed Data”). Transactions automatically sanctioned by the Decision Tree and Fraud Score are immediately released to Client for Client’s final approval, while high-risk (“Gray Area”) transactions, after being subjected to evaluation by manual reviewers, are flagged by ClearSale as potentially fraudulent and then sent to Client for Client’s final rejection. Finally, ClearSale is advised by client as to whether the transaction was ultimately fulfilled, refunded, cancelled, or fraudulent. This feedback facilitates improvement of the quality of ClearSale’s data, which in turn boosts the accuracy of its Fraud Score for future use. Client consents to the possibility that, during evaluation of transactions by manual reviewers, buyers may receive direct communications from us, including, but not limited to, e-mail, text messages, calls, and push notifications to the cellular telephone number provided to us. These communications function as a form of secondary authentication.

Chargeback Guarantee provides 100% guaranteed coverage of any fraud-related chargebacks incurred by client. If ClearSale approves a transaction that turns out to be fraudulent and results in a chargeback, ClearSale reimburses client for the entire amount of the fraudulent chargeback.

Chargeback Protection is a fraud protection solution that will allow Client to recoup a portion of any losses incurred by a fraudulent transaction. ClearSale and Client establish a Service-Level Agreement (“SLA”) that identifies specific key performance indicator (“KPI”) thresholds that ClearSale agrees to meet. Every quarter, ClearSale reconciles its performance with those KPIs, and, if they are not met, Client will receive a discount on Client’s invoice, as set forth in the applicable executed Reseller Order.

The analysis conducted by ClearSale is based on the integration flow and form of communication agreed to by the Parties, as described below:

1.

2.

3.

4.

Client provides data to the ClearSale WebService for purposes of analyzing a transaction.

ClearSale issues Client a reccomendation to either approve or decline the transaction based on the Analyzed Data.

Client informs ClearSale of the result of the transaction (transaction fulfilled, settled, refunded, canceled, fraudulent, etc.).

ClearSale sends monthly accuracy reports and then invoices Client based on monthly results and pursuant to the conditions and discounts described herein.

Client may include data that are not subject to fraud risk to boost the accuracy of ClearSale’s Services. Only those transactions for which ClearSale provided Client with a recommendation (whether in the form of a system notification, marker, icon, other notification on the WebService, or otherwise) shall be considered a transaction analyzed by ClearSale (“Analyzed Transaction”).

ClearSale may be required by Client to provide implementation, consulting, training, auditing, or support services (“Data Science Services”). The ClearSale Data Science Team has extensive business experience in fraud prevention, research, analysis, and data science. ClearSale uses this experience to provide Client with a comprehensive understanding of fraud threats and to create tailored solutions for these threats. Any Data Science Service requested by Client will be outlined in the respective Addendum, and thus incorporated hereto by reference.

C. CLIENT REIMBURSEMENT POLICY.

Subject to the conditions applicable to the Services described herein and as set forth in the applicable executed Reseller Order, ClearSale may discount or reimburse any payments owed by Client for transactions that ClearSale recommended Client accept but are ultimately found to be fraudulent (“Client Reimbursement Policy”).

  • Chargeback Guarantee

If Client chooses the Chargeback Guarantee, ClearSale will issue a full reimbursement of the total value of the Analyzed Transaction recommended for acceptance by ClearSale that was ultimately found to be fraudulent (“Reimbursement”).

  • Chargeback Protection

If Client chooses Chargeback Protection, ClearSale will offset (“Offset”) any surpluses in the KPI thresholds, as set forth in the applicable executed Reseller Order.

Calculations are made quarterly (every three-month period), as follows:

  • The FTs during months 1 (i.e., January), 2 (i.e., February) and 3 (i.e., March) are added together. The Offset percentage will be calculated at the beginning of month 7 (i.e., July) and will reference the total number of FTs, if any, detected during months 1, 2, and 3.
  • The total quarterly Offset amount will be divided by three, and the resulting amounts will be applied to and discounted from the three invoices submitted immediately after calculation (e.g., for months 7 (September), 8 (October), and 9 (November)).
  • In order to be included in the FRD index, all fraudulent transactions must be reported to ClearSale no less than seven (7) days prior to the calculation date of the respective quarter’s Fraud Index (e.g., by July 3).
  • For purposes of assigning transactions to a specific quarter, the fraud date shall be the date when the fraudulent transaction occurred.

For example:

Fraud-Assessment Quarter

Calculation Date

Month(s) Invoices Will Be Offset

January 1, 2019–March 31, 2019

July 10, 2019

July 2019, August 2019, September 2019

April 1, 2019–June 30, 2019

October 10, 2019

October 2019, November 2019, December 2019

July1, 2019–September 30, 2019

January 10, 2020

January 2020, February 2020, March 2020

October 1, 2019–December 31, 2019

April 10, 2020

April 2020, May 2020, June 2020

  • Eligibility for the Client Reimbursement Policy:

Only transactions that ClearSale recommends that Client accept and that are ultimately determined to be fraudulent will be eligible for the Client Reimbursement Policy.

In order for the terms of ClearSale’s Client Reimbursement Policy to apply, Client must:

  • Comply with all of the terms outlined in this Agreement;
  • Submit one hundred percent (100%) of Client’s transactions through ClearSale’s Platform;
  • Send written notice via email or via ClearSale’s Application to ClearSale indicating that Client has been the victim of a fraudulent transaction. If applicable, Client’s written notice shall include the formal notice issued by the financial institution that processed the transaction confirming said fraudulent transaction;
  • Submit at least seventy-five percent (75%) of Client’s fraudulent-transaction claims to ClearSale for verification within sixty (60) days of the date each respective transaction was made;
  • Comply with ClearSale’s System Integration Guidelines and API Guide, which may be accessed on the ClearSale website.
  • Adhere to the following terms when Client decides not to follow ClearSale’s recommendation to approve or decline a transaction:
  • If ClearSale advises Client to decline a transaction and Client reasonably believes the transaction is not fraudulent and chooses to approve it (or vice versa), then Client will agree to email ClearSale within 12 (twelve) hours of the moment when Client approved or declined the transaction at customer.service@clear.sale and provide the reason(s) why Client decided against ClearSale’s determination.
  • If any transaction approved by Client that ClearSale originally recommended be declined leads to a Fraud Attack, then ClearSale shall not be held liable in any way whatsoever for said attack. If ClearSale determines that a Fraud Attack took place, ClearSale shall then deliver additional information to Client in support of this determination.
  • Client shall send ClearSale the final result of each transaction, i.e., whether it has been fulfilled, settled, refunded, or canceled, or if the transaction was fraudulent.

Client shall not be eligible for the Client Reimbursement Policy if any of the following events occur involving a fraudulent transaction:

  • Client has any outstanding invoices for thirty (30) days or more.
  • The details stated in the fraud notice issued by the financial institution do not match those of the original transaction approved by ClearSale;
  • Delivery was made to an address that differs from the one stated in the submitted transaction;
  • The transaction was not reviewed and approved by ClearSale.

ClearSale will review and label all chargebacks to verify that fraud was the reason for the chargeback. The reason codes include but are not limited to:

  1. Code #37 – Fraudulent Transaction without Cardholder Authorization
  2. Code #40 – Fraudulent Processing of Transactions
  3. Code #57 – Multiple Fraudulent Transactions or Credit-Card-Activated Telephone Transaction
  4. Code #62 – Counterfeit Transaction
  5. Code #63 – Cardholder Does Not Recognize Potential Fraud
  6. Code #75 – Cardholder Does Not Recognize Transaction
  7. Code #81 – Fraudulent Transaction: Card-Present Situation
  8. Code #83 – Fraudulent Transaction: Card-Not-Present Situation

ClearSale may also classify chargebacks under different reason codes to determine whether they are fraudulent. Any chargeback deemed fraudulent by ClearSale will be eligible for Reimbursement or an Offset. Client’s bank will also classify chargebacks under its own codes, which may differ from ClearSale’s codes listed above. Any chargeback classified by Client’s bank under these same categories—despite being under a code number—shall also be eligible for Reimbursement or an Offset.

Card processors may periodically update their chargeback codes, which may not be fully reflected above. If the card processor reports any addition, omission, or modification to any reason code, ClearSale will determine the eligibility of a submitted transaction for Reimbursement or an Offset at its sole discretion.

Reimbursements and Offsets shall only apply to chargebacks related to identity fraud and not to those resulting from business differences, customer dissatisfaction, or deliberate or accidental purchases made by the cardholder that are later disputed.

  • Reimbursement and Offset Logistics and Timeframe:

As of the date when ClearSale receives Client’s written notice of a fraudulent transaction, ClearSale’s team will take up to seven (7) calendar days to review the claim and issue an opinion on whether the claim falls under the Client Reimbursement Policy.

Under Total Chargeback Guaranteed Protection, ClearSale will reimburse the Client on a rolling monthly basis with a credit note applied to Client’s account.

Under Total Chargeback Protection, Offsets will be applied exclusively to ClearSale’s invoices, so if the amount offset exceeds ClearSale’s invoice for that month, the balance of the offset amount shall be applied to ClearSale’s subsequent invoice.

Provided that Client notifies ClearSale of a fraudulent transaction within 7 (seven) calendar days of the date when ClearSale issues its invoice, all eligible Reimbursements shall be made within the same billing period as when the written notice is received from Client about the corresponding frauds.

ClearSale will strive to accommodate all fraudulent transaction claims it is notified about by Client outside the abovementioned timeframe within the same billing cycle. If this is unfeasible, then any unpaid Reimbursement or Offset shall be applied to the next billing cycle.

D. PRICING AND PAYMENT TERMS.

Fees. The payment to ClearSale is as set forth in the applicable executed Reseller Order. ClearSale’s services will be invoiced every month, unless otherwise stated in the Reseller Order. Invoices will be sent via e-mail to the address provided to us in the applicable executed Reseller Order unless alternate arrangements are made.

Terms of Payment. All amounts stated in the invoices and any amounts referenced herein or in the Reseller Order are in U.S. dollars, unless specifically stated otherwise. None of the fees charged by ClearSale includes any local, state, federal, or other taxes, including sales tax, value-added tax, or any levies or duties of any nature. The invoiced party is responsible for paying any such taxes. Payment shall be made within 30 (thirty) calendar days following the date when the invoice is received. Any unpaid invoices within this 30-day timeframe shall be deemed past due and will therefore accrue interest as of the 31st (thirty-first) day, at a rate of twelve percent (12%) per annum for the first 60 days and thereafter at ten percent (10%) per annum, until paid. In the event that ClearSale brings suit against the invoiced party for unpaid fees, the invoiced party agrees (i) to pay ClearSale’s legal costs and fees incurred relating to the filing of such lawsuit, the prosecution of any appeals, and the enforcement of any judgments rendered against Client; (ii) that the exclusive forum for any such claim shall be the competent courts located in Miami, FL, USA; and (iii) that if ClearSale does not—as a matter of courtesy—charge the invoiced party interest for a past-due invoice, this does not constitute a waiver of ClearSale’s rights to require the invoiced party to pay interest, as agreed herein, if the invoiced party should later fail to pay the invoiced party’s invoices when due.

ClearSale’s assessment of any fee assumes that You have provided precise and comprehensive information in response to inquiries made and that You will provide reasonable support to allow ClearSale to perform its obligations under this Agreement as well as any other support documents thereof executed by the Parties. If the information You provide materially differs from the descriptions provided to ClearSale, or if You fail to provide reasonable assistance, then ClearSale may charge an additional fee on a time and materials basis at ClearSale’s then-standard rates for time spent by ClearSale’s resources in performing professional services in excess of the estimates ClearSale used to establish the original proposal.

E. PERFORMANCE STANDARDS FOR ANALYSIS RESPONSE TIME.

As indicated in Section B above, the Services involve ClearSale recommending that Client either accept or decline a particular transaction. ClearSale hereby agrees to issue this recommendation within a specific timeframe, which is defined below and varies according to the service level chosen, as set forth in the applicable executed Reseller Order. The service levels employed by ClearSale (“Service Level”), which are calculated quarterly (every three months), are detailed as follows:

Standard. ClearSale will respond to 60% (sixty percent) of Client’s transactions within 3 (three) hours, 90% (ninety percent) of Client’s transactions within 24 (twenty-four) hours, and 100% (one hundred percent) of Client’s transactions within 24 (twenty-four) hours.

Basic. ClearSale will respond to 60% (sixty percent) of Client’s transactions within 24 (twenty-four) hours and 100% (one hundred percent) of Client’s transactions within 48 (forty-eight) hours.

Economy. ClearSale will respond to 95% (ninety-five percent) of Client’s transactions within 48 (forty-eight) hours and 100% (one hundred percent) of Client’s transactions within 72 (seventy-two) hours.

Express. ClearSale will respond to 80% (eighty percent) of Client’s transactions within 1 (one) hour and 100% (one hundred percent) of Client’s transactions within 24 (twenty-four) hours.

Plus. ClearSale will respond to 50% (fifty percent) of Client’s transactions within 1 (one) hour, 80% (eighty percent) of Client’s transactions within 6 (six) hours, and 100% (one hundred percent) of Client’s transactions within 24 (twenty-four) hours.

Instant. ClearSale will respond to all transactions received from Client within 1 (one) hour.

Custom. As agreed with Client and set forth in the applicable executed Reseller Order.

This commitment by ClearSale to provide a specific Service Level, as chosen by Client (“Service-Level Agreement”), will not be effective for the first two (2) weeks of normal operations, as these two (2) weeks will be necessary to align the new operations with Client’s systems and procedures. Notwithstanding the foregoing, ClearSale shall do its best to comply with these Service-Level Agreements during the abovementioned period.

F. TECHNICAL SUPPORT.

Any service requests that require the assistance of the ClearSale Technical Support Team (“Help Desk”) will be given a Severity Code from 1 to 4, which will be based on the issue’s magnitude in relation to Client’s primary business and the availability of any other ancillary methods for overcoming these issues (“Workarounds”). Each level of Severity Code is defined below:

SEVERITY CODE

DEFINITION

1

A problem has made a critical application function unusable or unavailable, and no Workaround exists.

2

A problem has made a critical application function unusable or unavailable, but a Workaround does exist; or a problem has made an important application function unusable or unavailable, and no Workaround exists.

3

A problem has diminished critical or important application functionality or performance, but the functionality still performs as specified in the user documentation.

4

A problem has diminished a supportive application’s functionality or performance.

Critical, important, and supportive application functions, as referred to above, are defined as follows:

Application Function Type

Description

Critical

These application functions are critical to ensuring business profitability or Client’s reputation. Extended failure will impact profit or damage Client’s reputation.

Important

These application functions are important to business productivity but are not critical to profitability or Client’s reputation.

Supportive

These applications support productivity but are not essential to business effectiveness.

Severity codes are used to determine appropriate response and resolution times. Response and resolution times are measured from when the incident is opened up by the Help Desk. If the problem is not resolved within the defined timeframe, then continuous efforts will be made until the problem is resolved.

SEVERITY CODE

INITIAL
RESPONSE (up to)

ESTIMATED RESPONSE (up to)

SUBSEQUENT RESPONSES (up to)

RESOLUTION (up to)

1

60 minutes

2 hours

Every 30 minutes

4 hours

2

90 minutes

180 minutes

Every 2 hours

8 hours

3

1 hour

2 hours

Every 4 hours

1 business day

4

4 hours

8 hours

Every 1 day

2 business days

The title of each column above is defined as follows:

Initial Response is when a ticket is opened and acknowledged by the Help Desk.

Estimated Response is when the user who logged the ticket is given an estimated resolution time.

Subsequent Responses is the rate at which the user who logged the ticket is updated on the resolution status.

Resolution is the point at which the problem is resolved and the application function is returned to a usable and available state.

If ClearSale fails to meet the agreed response times, ClearSale will impose the following penalties (resulting in a discount to Client’s respective invoice):

TYPE

MEASUREMENT

PENALTY

SEVERITY 1 RESOLUTION

One or more severity 1 problems are resolved in over 4 hours.

10% discount applied to the respective invoice.

SEVERITY 2 RESOLUTION

Less than 95% of severity 2 problems are resolved in 8 hours.

5% discount applied to the respective invoice.

SEVERITY 3 RESOLUTION

Less than 90% of severity 3 problems are resolved in 1 business day.

3% discount applied to the respective invoice.

SEVERITY 4 RESOLUTION

Less than 90% of severity 4 problems are resolved in 2 business days.

1% discount applied to the respective invoice.

RESPONSE/ESTIMATE

Less than 95% of initial response, estimation response, and subsequent response times are met.

5% discount applied to the respective invoice

G. SERVICE PERFORMANCE LEVEL.

ClearSale will make the Services available to Client at an “Availability Percentage” equal to or greater than that described in the following table, as measured and calculated, as a percentage, over the course of each calendar month during the Term of this Agreement (“Service Performance Level”). As used herein, “Available” or “Availability” means that the Services are available for access and use by Client and that all support systems are operational.

A Service Performance Level does not consider the following in its calculations: (1) scheduled interruptions for system maintenance about which Client has been duly advised, (2) acts of God or force majeure resulting from malware or other third-party attacks that render the system unavailable, or (3) interruptions caused by the telephone company due to telephone malfunctions.

Any failure by ClearSale to meet specific Availability thresholds shall result in the following penalties (resulting in a discount to Client’s respective invoice):

Type

Measurement

Penalty

Critical Application Availability

Availability falls below 99.0%

3% discount applied to the respective invoice

Important Application Availability

Availability falls below 98.5%

5% discount applied to the respective invoice

Supportive Application Availability

Availability falls below 98.0%

10% discount applied to the respective invoice

H. TERM AND DURATION OF THE AGREEMENT.

This Agreement is a legally binding contract and will enter into effect as of the date when Client begins using the ClearSale Services as set forth in the applicable executed Reseller Order (the “Effective Date”).

The term of this Agreement shall remain in effect for one (1) year as of its Effective Date (the “Term”). Thereafter, the Term shall automatically renew in one-year (1-year) increments on the anniversary of the Effective Date. Each extension shall be subject to the aforementioned 30-day advance written notice and all other relevant obligations established herein.

I. TERMINATION.

Client understands and agrees that for the ClearSale model to work, neither Party may terminate this Agreement during the first 30 (thirty) calendar days after the Effective Date (“Introductory Term”). After the Introductory Term, either party may terminate this Agreement at any time by delivering written notice to the other party at least 30 (thirty) days in advance of the expected termination date.

ClearSale may terminate this Agreement immediately and without any liability whatsoever if Client has knowingly engaged in activities that (i) have caused or that ClearSale reasonably believes will cause damage to the ClearSale platform, the ClearSale Services, or any of its internal processes related to the Services; (ii) cause the ClearSale platform or ClearSale services to break down or otherwise become inaccessible by ClearSale for more than twenty-four (24) hours; (iii) cause damage to any other property of ClearSale, including ClearSale’s intellectual property, reputation, or goodwill, or those of its parent, affiliates, or subsidiaries; or (iv) violate any applicable laws in any material respect with respect to this Agreement.

In addition, and notwithstanding ClearSale’s right to immediately terminate this Agreement as set forth in the preceding paragraph, Client further agrees to indemnify and hold ClearSale and its parent, affiliates, and subsidiaries harmless, along with their respective officers, directors, employees, partners, managers, or persons acting in a similar capacity; agents, consultants, financial and other advisors, accountants, attorneys, and other representatives; and their respective heirs and assigns, from and against any and all losses or damages incurred or suffered by ClearSale when such losses or damages are the direct result of any of the aforementioned activities.

This Agreement may also be immediately terminated by either party upon written notice if (i) the other party is dissolved; (ii) the other party is the subject of a petition filed in bankruptcy under Chapter 7, which is still pending sixty (60) calendar days after filing and notice to the other party; (iii) the other party is adjudicated as bankrupt or insolvent; (iv) the other party makes a general assignment for creditors’ benefit or an arrangement pursuant to any bankruptcy law; or (v) if a receiver is appointed to take charge of the other party’s affairs and/or assets, which are still pending sixty (60) days after filing and notice to the other party.

Upon termination of this Agreement, any outstanding or unpaid invoices, if any, shall be issued by ClearSale and paid by the invoiced party within the foregoing 30-day time period; if applicable, ClearSale shall calculate and apply any Reimbursements or Offsets owed to Client in accordance with Section C herein. The termination of ClearSale’s Services shall not affect any rights accrued by either party following termination.

J. BREACH OF CONTRACT.

If eitherparty materially breaches any of its obligations under this Services Agreement, including its confidentiality, data protection, and non-disclosure obligations, and such breach is not cured within 30 days after the breaching Party receives written notice thereof from the non-breaching Party, then the non-breaching Party may immediately terminate this entire Agreement by delivering written notice of termination. However, the non-breaching party shall not be entitled to terminate this Agreement if, as of the end of that 30-day period, a good-faith dispute remains between the Parties as to whether the other party materially breached this Agreement or has cured the applicable breach. A party’s failure to exercise its rights hereunder with respect to a breach by the other party shall not be construed as a waiver of such rights or prevent that party from subsequently asserting such rights with regard to that breach or similar breaches.

K. LICENSE TO USE CLEARSALE’S SERVICES.

Subject to this Agreement, ClearSale grants Client a non-exclusive, revocable, and non-transferable license to access its WebService and use its Services. This license includes updates and upgrades to ClearSale’s WebService, which is ClearSale’s platform or application; however, it does not grant Client any right to any version enhancement. Except for the rights expressly granted by this Agreement, no other rights are granted, neither express nor implied.

Client shall comply with all applicable laws when using the Services. Client shall not use the Services in any way that causes, or may cause, damage to ClearSale; in any way that is unlawful, illegal, fraudulent, or harmful; or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.

Client may view, download solely for caching purposes, and print information from the WebService for the exclusive and specific purpose of reviewing its Analyzed Transactions, subject to the confidentiality and data-protection restrictions set in this Agreement.

Client shall refrain from using, retaining, or duplicating data provided by the software to create any file, list, or database for Client or third-Party use.

When Client registers with the WebService, ClearSale will provide Client with a confidential username and password. Client shall ensure the security and confidentiality of that username and that password, which may never be shared with any unauthorized third parties. Client shall immediately notify ClearSale in writing if and when Client becomes aware of any unauthorized use of its account or password, so that ClearSale may take the appropriate steps to prevent or limit any improper use of Client’s account. Client is responsible for any activity on the ClearSale WebService arising from any failure to keep its password confidential and may be held liable for any losses originating from said failure.

Client shall not use any other person’s username or password to access the WebService. ClearSale may temporarily disable Client’s Service only when Client instructs ClearSale to do so or if the use of that account implicates an imminent risk of damages to Client or ClearSale, in which case ClearSale shall promptly notify Client.

In order for ClearSale’s fraud-detection service to work effectively, one hundred percent (100%) of Client’s transactions must go through the ClearSale WebService. This will allow ClearSale to properly evaluate and process data; thus, any missing or inaccurate data can adversely affect the fraud-detection process. Unless otherwise stated in the Reseller Order, failure to run all transactions through the ClearSale WebService may result in cancellation of the Service and termination of this Agreement, without any liability whatsoever to ClearSale. Each request for fraud-screening services for a specific transaction is subject to ClearSale’s acceptance at its sole discretion.

ClearSale may require additional information from Client from time to time to improve ClearSale’s Services; create a historical database, so that the ClearSale team can develop and customize a statistical model of Client’s business; assist in setting up personalized system integration between ClearSale and Client; and assist in implementing the ClearSale statistical model.

Client agrees to not engage, permit, or encourage any third party to knowingly or intentionally fail to properly implement the API. In order for the Services to work, Client shall comply with the conditions and specifications outlined in the API Guide, which may be accessed on the ClearSale website. ClearSale may make necessary and reasonable changes to the API Guide from time to time.

L. DATA PROTECTION AND NON-DISCLOSURE.

Client hereby authorizes ClearSale to receive or collect information on Client’s relevant end users (including, but not limited to, email address, first and last name, birth date and/or age, company, job title, photo, website URLs, social network usernames, instant messenger handles, and IP address from Client’s applicable platform or other applicable third-party platforms (collectively, the "Raw Data"). The Raw Data will then be grouped with the raw data ClearSale receives and has received from its other customers for improving its services. Client agrees that ClearSale may use the Raw Data for as long as reasonably necessary. Upon termination of this Agreement, Client may request that the Raw Data go through an anonymization or pseudonymization process by encrypting, removing, or replacing personally identifiable information from its Raw Data, so that the people whom the data describe remain non-identifiable.

In addition, regarding Client’s collecting, processing, or sharing of its customer’s user data with ClearSale, Client hereby represents and warrants that:

Client has obtained or will obtain and maintain all necessary consents, approvals, or waivers so that Client and each third-party platform may provide or otherwise authorize ClearSale’s storage and access to the Raw Data. Client shall deliver proper notice to data subjects and obtain their consent prior to collecting, processing, or sharing any Raw Data with ClearSale, as required under applicable data-protection laws.

Client will comply with all applicable requirements, restrictions, and obligations under applicable data-protection laws that regulate situations whereby a data processor uses the data it receives from a data controller to make a recommendation to the data controller on a particular business transaction or decision.

Client will not engage, permit, or encourage any third party to knowingly or intentionally submit any information to ClearSale that is false, incomplete, obsolete, or misleading.

Client will not engage, permit, or encourage any third party to knowingly or intentionally fail to submit complete financial account information, full government identification numbers, health-related information, or any other information deemed “sensitive” under applicable law(s).

Client’s Raw Data may be retained (i) pursuant to applicable data-retention laws, provided that said data is not accessible in the ordinary course of business, and (ii) if the retention of Client’s Raw Data constitutes electronic records kept by ClearSale for backup, recovery, contingency planning, or business continuity planning purposes and are otherwise not accessible during the ordinary course of business.

Client’s prior written consent is not required in cases where applicable laws or judicial or administrative processes mandate the disclosure of Client’s Raw Data to government authorities, provided that ClearSale (i) immediately informs Client of such legal or administrative order and (ii) only reveals the part of Client’s Raw Data that ClearSale is legally required to reveal pursuant to such a court or administrative order.

In no way and at no time shall any third-party customers of ClearSale have access to Client’s Raw Data, and no Raw Data shall contain any identifiers of Client as the source of such Raw Data.

Under no circumstances shall ClearSale receive, process, store, or communicate any data that is subject to the Payment Card Industry Data Security Standard. ClearSale shall only receive limited credit card information (i.e., BIN and supplemental data).

As custodian of the Raw Data that Client provides to ClearSale, ClearSale agrees to adequately process said data pursuant to (i) all laws, regulations, and other binding legal sources governing data privacy, data security, or the processing or handling of Personal Data, but only to the extent that such legal sources are applicable to said party and its activities, which may include, but are not limited to, any superseding legislation, such as the Regulation (EU) 2016/679 of the European Parliament and of the Council (as the “General Data Protection Regulation”); (ii) Client’s Privacy Notice, if any; and (iii) any instructions Client has given to ClearSale. For purposes of this Subsection, “processing” should be understood as the use, limitations on disclosure, and filing of Personal Data, including access, management, use and disposal, or deletion, as well the owner’s right to access such Personal Data, and to correct, revise, or dispute the processing of owner’s data. To the extent that Client’s Data Policy conflicts with any of the terms herein or in ClearSale’s Data Policy, ClearSale’s terms will control.

ClearSale’s Privacy Policy, which is available at https://www.clear.sale/privacypolicy, is hereby incorporated into these terms.

ClearSale represents and warrants that it has implemented all appropriate technical and organizational measures as required by applicable data protection laws and other laws and regulations and by this Agreement, including, but not limited to, those measures required to protect against accidental or unlawful destruction, alteration, unauthorized disclosure, or access to Client’s Raw Data, and to protect the security, confidentiality, and integrity of the information provided to ClearSale by Client.

ClearSale is not required to back up any user data, and the user data ClearSale stores may be deleted at any time.

ClearSale shall advise its officers, directors, and employees who need access to Client’s Raw Data of their confidentiality and data protection obligations under this Agreement.

The Parties shall immediately inform each other in writing of any government authority requesting the disclosure of Personal Data; any inquiries or requests from identified/identifiable individuals with respect to each other’s Personal Data; and any reasonably suspected or actual security breach, loss or unauthorized use, disclosure, acquisition of, or access to Personal Data or systems used for processing Personal Data. Notification in writing shall include (i) the impact on the injured or aggrieved party, if known; and (ii) any action immediately taken or proposed to be taken.

The Parties shall fully cooperate with any notification referred to above, including, but not limited to, carrying out all reasonable and lawful instructions to investigate, prevent, mitigate, or rectify any suspected or actual security breach, loss or unauthorized use, disclosure, acquisition of, or access to Personal Data or systems used for processing Personal Data; or any suspected or actual breach of any applicable data protection or other statutory laws or regulations; or if an identified/identifiable individual requests access to, blocks, rectifies, or deletes their own Personal Data.

The Parties shall provide all reasonable assistance to authorized officers, directors, and employees in performing a review or monitoring activities with the understanding that any such activities or inspections shall not unreasonably interfere with the normal conduct of the Parties’ business.

M. CONFIDENTIALITY.

“Confidential Information” under this Agreement shall include any knowledge, data, or information concerning the corporate, financial/economic, technological, or management aspects of either party’s business operations, such as its products, systems, software, hardware, techniques, strategies, methods of operation, or any other aspect concerning the owner of the Confidential Information (the “Disclosing Party”) reveals to the other party (the “Recipient Party”). The Confidential Information shall only be used to perform this Agreement and may not be used for any other purpose or be disclosed to any third parties or employees not directly involved in the performance of this Agreement without prior written authorization of the Disclosing Party. The terms of this Agreement are also considered Confidential Information.

ClearSale agrees that Client’s Confidential Information shall always remain the exclusive property of Client. ClearSale shall not disclose the Confidential Information provided by Client unless otherwise compelled by law or is expressly authorized in writing by Client.

ClearSale owns the right, title, and interest, including all intellectual property rights, in and to WebService, and any and all underlying software and technology used to provide and make available the Services. Client hereby agrees not to infringe upon any of ClearSale’s intellectual property rights and, further, to abide by the provisions contained herein. During the Term of the Agreement, and for a period of ten (10) years following the termination thereof, Client shall not:

  • Reveal to the public or republish material from WebService or ClearSale’s platform or application (including republication on another website);
  • Sell, rent, or sublicense material from WebService or ClearSale’s platform or application; or
  • Copy, modify, translate, reverse engineer, decompile, disassemble, edit, or modify WebService, the logged area, or ClearSale’s software or application, or create derivative works based thereon.

The following shall not be considered Confidential Information: (i) any information that was fully or partially in the public domain when disclosed or that becomes part of the public domain after being disclosed, without this being considered a breach by the Recipient Party to its obligations hereunder; (ii) any information that was already known by the other party at the time of disclosure; (iii) any information attributed to an order to disclose issued by a court or other government authority, provided the Recipient Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent that it is legally permitted).

All trademarks, logos, and service marks displayed on the ClearSale website belong to ClearSale or are the property of other third parties. Client is not permitted to use these trademarks without ClearSale’s prior written consent or the consent of the third party who may be the owner of such trademarks.

Client’s obligations under this section shall survive the termination of this Agreement.

N. GENERAL PROVISIONS.

Upon acceptance, Client agrees to the following:

Use the data provided by ClearSale or ClearSale’s risk analysts to assist in making risk and business decisions.

Refrain from using the data obtained to embarrass or coerce third parties or as grounds to violate or threaten the rights of third parties.

Refrain from engaging, permitting, or encouraging any third party to probe, scan, or test the vulnerability of any system or network or to breach any security or authentication measures.

Refrain from engaging, permitting, or encouraging any third party to benchmark, test the capacity or limitations of, or interfere with the access of any user, host, or network, including, but not limited to, sending a virus, overloading, flooding, spamming, or mail-bombing ClearSale’s Services.

Client shall provide ClearSale with all necessary information and documents for the full and faithful performance of this Agreement, as well as all transaction reports and records.

Client shall refrain from disclosing or using the data provided by the software to defend Client from administrative or judicial claims under penalty of being solely and fully liable for any damages or convictions resulting from such claims.

O. MARKETING AND PUBLICITY.

The Parties agree that ClearSale may disclose that Client is a customer of ClearSale and that ClearSale may include Client’s name and logo in any customer lists on the ClearSale website and in other marketing collateral and press releases.

P. CONSENT TO ELECTRONIC COMMUNICATIONS.

By using ClearSale’s Application or Services, Client consents to receiving electronic communications from ClearSale. These communications may include notices related to Client’s account and information concerning or related to the ClearSale Application or Services. Client agrees that any notices, agreements, disclosures, or other communications sent electronically by ClearSale will satisfy any and all legal communication requirements, including the stipulation that such communications be in writing.

Q. RELATIONSHIP BETWEEN THE PARTIES.

Nothing in this Agreement shall be construed to create an employment or agency relationship, partnership, or joint venture between the Parties. ClearSale is not an employee of Client, and Client is not an employee of ClearSale. ClearSale is an independent company providing professional services to Client. Neither ClearSale nor any of its executives, managers, employees, or representatives shall have any authority to bind or represent Client; and neither Client nor any of its executives, managers, employees, or representatives shall have any authority to bind or represent ClearSale. Both Parties acknowledge that they are under no obligation to withhold any income or other payroll taxes on the other’s behalf and that each party will be solely responsible for compliance with all state, federal, and local laws pertaining to employee wages, benefits, and any and all other compensation payable to their respective employees, and for the withholding and payment of any taxes thereto and in relation to this Agreement. Both Parties agree to indemnify, defend, and hold each other harmless from and against any losses that one party incurs as a result of the other’s breach of its obligations under this provision.

R. FORCE MAJEURE.

If, and to the extent that, a party's performance of any of its obligations pursuant to this Agreement is prevented, hindered, or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of the party (a "Force Majeure Event"), and such non-performance, hindrance, or delay could not have been prevented by reasonable precautions, then the non-performing, hindered, or delayed party will be excused, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and the party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, Workaround plans, or other means. The party whose performance is prevented, hindered, or delayed by a Force Majeure Event will immediately notify the other party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event.

S. AMENDMENTS TO THE AGREEMENT.

ClearSale shall not be entitled to modify, remove features from or add features to, cancel, revoke, or suspend the Services or Client’s access to all or part of the Services unless these actions represent an imminent and unavoidable security or technical risk to ClearSale’s systems, in which case ClearSale will provide Client with prior notice within a reasonable timeframe. ClearSale will have no liability whatsoever for any change or update to the Service or for suspending or revoking Client’s access to or use of all or part of the Service.

T. LIMITED WARRANTIES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEARSALE EXCLUDES ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS RELATING TO CLEARSALE’S SERVICES AND THE USE THEREOF (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, OR THE USE OF REASONABLE CARE AND SKILL). CLEARSALE DISCLAIMS (1) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS ANY CONTRACTS OR REPRESENTATIONS MADE BY ANY PARTY RELATING TO OUR SERVICES; (2) ANY LIABILITY FOR ECONOMIC LOSS ARISING FROM CLAIMS OF DEFECTS, PRODUCT FAILURE, NEGLIGENCE, FAILURE TO WARN OR INSTRUCT, OR ANY OTHER THEORY OF LIABILITY; AND (3) ANY LIABILITY FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, COSTS, OR EXPENSES INCLUDING, BUT NOT LIMITED TO, LOSS OF TIME, USE, VALUE OR INCONVENIENCE, INJURY, OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY INFORMATION PROVIDED IF ERRONEOUS, OR RESCISSION OR REVOCATION OF ACCEPTANCE.

U. LIMITATIONS AND EXCLUSIONS OF LIABILITY.

EXCEPT AS DESCRIBED IN THIS PARAGRAPH, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF GOODWILL, DAMAGE TO REPUTATION, AND LOSS OF OPPORTUNITIES, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGES, COMPUTER FAILURES OR MALFUNCTIONS, LOST DATA, OR FOR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSSES, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

THE MAXIMUM TOTAL LIABILITY OF CLEARSALE AND ITS SUPPLIERS AND LICENSORS TO CLIENT FOR ALL CLAIMS UNDER THESE TERMS OR OTHERWISE RELATING TO ITS SERVICES WILL NOT EXCEED 50% OF THE TOTAL FEES, IF ANY, PAID BY CLIENT FOR CLIENT’S ACCESS TO AND USE OF CLEARSALE’S SERVICES. IF A COURT FINDS THE MAXIMUM TOTAL LIABILITY UNDER THE PREVIOUS SENTENCE TO BE UNENFORCEABLE, THEN THE MAXIMUM TOTAL LIABILITY OF CLEARSALE AND ITS SUPPLIERS AND LICENSORS TO CLIENT FOR ALL CLAIMS UNDER THESE TERMS OR OTHERWISE RELATING TO ITS SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED $50.

CLIENT FURTHER AGREES THAT CLEARSALE’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS THAT PROVIDES FOR A LIMITATION ON LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS LIMITATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY, EVEN IF ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

V. DISPUTE RESOLUTION.

Negotiation. The Parties shall promptly and in good faith attempt to resolve any dispute arising out of or relating to this Agreement by negotiation between executives who have the authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Either party may deliver written notice to the other party of any dispute. Within fifteen (15) calendar days after the delivery of such notice, the receiving party shall submit to the other a written response. The notice and response shall include, with reasonable particularity, (i) a statement of each party’s position and a summary of arguments supporting that position and (ii) the name and title of the executive who will represent that party and of any other person who will accompany said executive. Within thirty (30) calendar days following delivery of the written response, the executives of both Parties shall meet at a mutually acceptable time and place to discuss the resolution of the dispute.

Unless otherwise agreed in writing by the negotiating Parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, which may continue to the next day, if desired, and as decided by the Parties. In the event the Parties decide to postpone and continue negotiations on a different day, the Parties will decide on a new date, time, and place within five (5) business days of the First Meeting, and the date, time, and place agreed to between the Parties shall in no way occur after ten (10) business days following the First Meeting. All subsequent meetings, if any, shall follow the same procedure as stated above: (i) a new date, time, and place within five (5) business days of the previous meeting, and (ii) the ensuing meeting shall take place within ten (10) business days of the previous meeting, until the Parties either settle the dispute or decide to move on to mediation, in accordance with the subsection below. Each party shall be responsible for its own costs and expenses relating to said meeting or meetings, unless the Parties agree otherwise.

All offers, promises, conduct, and statements, whether oral or written, made in the course of the negotiation by any of the Parties, their agents, employees, experts, and attorneys are confidential, privileged, and inadmissible for any purpose, including impeachment, in arbitration, litigation, or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.

At no time prior to the First Meeting shall either side initiate any litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by agreement of the Parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of the subsection above.

All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified above are pending and for fifteen (15) calendar days thereafter. The Parties will take such action, if any, required to effectuate such tolling.

If the matter is not resolved by negotiation pursuant to the subsection above, then the matter will proceed to mediation as set forth below.

Mediation. If the dispute has not been resolved by negotiation in accordance with the subsection above, then the Parties will proceed to mediation, which shall be carried out in accordance with the following process:

  • The initiating party shall serve a “Notice of Mediation” upon the other party, signifying that the negotiation was not successful and to commence the mediation process.
  • The Parties shall agree on a mediator; however, if they cannot agree within fourteen (14) calendar days, then JAMS (formerly known as Judicial Arbitration and Mediation Services), or any other private mediation service agreed to by the Parties, shall appoint a mediator.
  • The mediation session shall be held within forty-five (45) calendar days of the retention of the mediator and last for at least one (1) full mediation day before any party has the option to withdraw from the process. The Parties may agree to continue the mediation process beyond one (1) day until there is a settlement agreement or until one party (or the mediator) declares in writing that there is no reason to continue because of an impasse that cannot be overcome and issues a “Notice of Termination of Mediation” to both Parties, which will outline the reasons for the impasse.
  • All reasonable efforts will be made to complete the mediation within thirty (30) calendar days of the first mediation session.
  • All other processes and procedures relating to the mediation shall be governed by the JAMS, AAA (American Arbitration Association), CPR (Conflict Prevention and Resolution) Rules, or any other rules or regulations governing alternative-dispute resolution to which the Parties agree.

During the course of the mediation, no party can assert the failure to fully comply with the subsection above as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the dispute until thirty (30) days after the Parties agree that the mediation has concluded or the mediator issues a Notice of Termination of Mediation. Each side shall bear an equal share of the mediation costs unless the Parties agree otherwise.

All communications, both written and oral, during Phases A and B are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the dispute that would otherwise be discoverable, do not become confidential simply because they are used in the negotiation and/or mediation process.

The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider.

Litigation. Any dispute not resolved through negotiation or mediation in accordance with the subsections above shall be resolved by litigation. Both Client and ClearSale agree and consent to the exclusive personal jurisdiction and venue of the competent courts located in Miami-Dade County, Florida, United States, including the United States District Courts in the Southern District of Florida, if such courts obtain jurisdiction, or any other jurisdiction where a suit may be properly commenced at ClearSale’s election. Both Parties expressly agree that no litigation shall be filed or commenced without first attempting to resolve the dispute in good faith in accordance with the negotiation and mediation processes outlined in the subsections above.

W. ASSIGNMENT.

This Agreement may not be assigned by Client without ClearSale’s prior written consent, which may only be granted at ClearSale’s sole discretion.

X. SEVERABILITY.

If any provision of this Agreement is determined by any court or other competent authority to be unlawful or unenforceable, then all other provisions shall remain in effect. If any unlawful or unenforceable provision would be lawful or enforceable if part of it were deleted, then said part shall be deemed deleted and the rest of the provision shall remain in effect.

Y. GOVERNING LAW AND JURISDICTION.

This Agreement will be governed by and construed exclusively according to the laws of the State of Florida and the United States, without reference to choice of laws. As previously stated, Client hereby irrevocably consents to the exclusive personal jurisdiction and venue of the competent courts located in Miami-Dade County, Florida, United States, including the United States District Courts in the Southern District of Florida, if such courts obtain jurisdiction, or any other jurisdiction where a suit may be properly commenced at ClearSale’s election, in the event of any dispute that was not successfully negotiated or mediated pursuant to Section V herein.

Z. WAIVER OF JURY TRIAL.

The Parties hereby knowingly, voluntarily, and intentionally waive the right that any may have to trial by jury in respect to any action, proceeding, litigation, or counterclaim based hereon, or arising out of, under, on, or in connection with these terms of use or any course of conduct, course of dealing, statements (whether verbal or written), or actions of either party. This provision is a material inducement for the Parties hereto executing this Agreement. Each party acknowledges that it has received the advice of competent counsel.

AA. AGREEMENT ACCEPTANCE.

Each party represents and warrants to the other that it (i) has all requisite corporate power and authority to enter into this Agreement; (ii) is duly authorized by all requisite actions to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby, and that doing so will not conflict or cause a default with respect to its obligations under any other agreement; and (iii) this Agreement is enforceable against it in accordance with its terms.