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ClearSale Terms and Conditions

Version dated 25 September, 2020.

 

Before you read the terms below, we believe it is important that you understand the main points, as follows:

CLEARSALE PLEDGES TO

  • Shield you and your customers from fraud
  • Use our clients’ data to help analyze certain behaviors to identify fraud patterns
  • Collect the data related to these patterns that will help ClearSale improve its ability to identify future fraud
  • Protect your data in accordance with all applicable laws.

CLEARSALE PLEDGES NOT TO

  • Identify you or any of your customers or make you or any of your customers identifiable to other ClearSale customers or any other third parties in any of our data models
  • Share your data with any unauthorized third parties, including marketers
  • Use your data for any purpose other than the specific purpose(s) your data was collected
  • Claim ownership of your data

Note: These points are merely the highlights of our terms and reading these should in no way be considered a replacement for reading the full text of our terms of service located here

These terms and conditions, together with any other support documents thereof executed by the Parties, constitute a binding legal agreement (the “Agreement”) between You (either as an individual or entity, hereinafter, “Client”) and ClearSale LLC (“ClearSale”).

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.

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 thereof executed by the Parties

WHEREAS, the Parties understand and agree that this Agreement and Addendum shall supersede and replace all prior agreements and understandings, oral or written, between the Client and ClearSale regarding the grant of the Options covered hereby.

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

1.           Definitions

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

Addendum - the Business Proposal provided by ClearSale and accepted by Client contemporaneously with this Agreement.

Application Programming Interface (API) – A set of clearly defined methods used for communicating among several components.

API Guide – The ClearSale Application Program Interface Guide refers to the manual located on the ClearSale website that explains the procedures employed by the ClearSale platform to interact with external systems.

Application – Refers to ClearSale’s web application, which is the Client–ClearSale server program that enables Client to interact with ClearSale’s Services.

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 (“Chargeback”, “Reimbursement Claim”, “Fraudulent-Transaction Claim”).

ClearSale Services - The “ClearSale Services” comprise a suite of SaaS based trust and safety products, some or all of which Client may elect to hire, that enable Clients to predict and prevent fraudulent activity.

Fraud Attack – Any type of ploy or scam designed to unlawfully gain access to and appropriate a third party’s personal information, either individually or en masse, for illicit purposes.  ClearSale shall be solely and exclusively responsible for determining when a Fraud Attack has taken place, and Client shall adhere to the guidelines described herein, so that ClearSale has all the necessary tools to immediately block any fraud attacks, thus improving the quality of its Services.

Fraud Prevention - An activity or series of activities designed to prevent or hinder the processing of a transaction that was not authorized by the consumer to whom the transaction was charged.     

Personal Data  – This shall have the same meaning as its correlative term under data protection laws, including the EU General Data Protection Regulation.

Service Level Agreement (SLA) – Refers to ClearSale’s commitment to Client to meet a specific level of quality, availability, or responsibility, which is legally binding.

Service Performance Level (SPL) –  Refers to the level of ClearSale’s performance while this Agreement is in effect. 

Analyzed transaction (TT) – 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) (“Analyzed Transaction”).

Approval Rate(s) (APR) –  Calculated quarterly by dividing the value of the transactions recommended for approval by ClearSale (TR) by the value of the total number of transactions analyzed by ClearSale during that same period (TT). Therefore, Approval Rate = [(TR) ÷ (TT)].

Decline Rate(s) (DCL) – Calculated quarterly by dividing the value of the transactions recommended for decline by ClearSale (TD) by the  value of the total number of transactions analyzed by ClearSale during that same period (TT). Therefore, Decline Rate = [(TD) ÷ (TT)].

Fraud Attack Rates - The number of attempted fraudulent transactions divided by the number of overall transactions.

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 (FT) by the value of the total number of transactions analyzed by ClearSale (TT) during the same time period. Therefore, the ClearSale Fraud Index = [FTs ($)] ÷ [TTs ($)].

Fraudulent Transaction  – A transaction charged to a person that was either not authorized by said person or was authorized through fraudulent or otherwise deceitful means or methods.         

2.           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 due to fraud suspicion.

ClearSale is not a consumer agency as defined by the Fair Credit Reporting Act (“FCRA”). The fact that ClearSale recommends that Client either accepts or declines a specific transaction does not mean it is 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 (a) to obtain credit or insurance for primarily personal, family or household purposes, (b) for employment purposes, or (c) any other purpose authorized under the FCRA.

ClearSale provides its fraud-prevention Services in accordance with Client’s specific needs as hereinafter described and specifically defined in the Addendum.  ClearSale’s Services main solutions are described in detail below:

  • Total Protection.
  • Total Guaranteed Protection.
  • Total Protection Real-Time
  • Total Guaranteed Protection Real-Time
  • Fraud Score; and
  • Data Science Services.

2.1. Total Protection,Total Protection Real-Time, Total Guaranteed Protection, and Total Guaranteed Protection Real-Time

Total Protection,Total Protection Real-Time,Total Guaranteed Protection, and Total Guaranteed Protection Real-Time are solutions to help shield potential transactions against fraud by making instant risk predictions, which are represented by a fraud score, i.e., a tool used to gauge risk 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 are 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 apart from the Real-Time solutions, where the decision must be instantaneous, high-risk (“Gray Area”) transactions, after having been evaluated by manual reviewers, are flagged by ClearSale as potentially fraudulent and then sent to Client for Client’s final rejection (or approval). In the case of Real-Time solutions, high-risk transactions are flagged by ClearSale as potentially fraudulent and then sent to the Client for Client's final rejection. In order to monitor the false positives inherent to Real-Time solutions, ClearSale may suggest that a random sample of transactions is reviewed (after being released) by a manual reviewers.

Finally, ClearSale is then informed by Client as to whether the transaction was ultimately fulfilled, refunded, cancelled, or fraudulent. This feedback helps improve the quality of ClearSale’s data, which in turn boosts the accuracy of its Fraud Score for future use. While most transactions are decided with no contact with the data owner, transactions that require manual review sometimes require direct contact with the legitimate owner of the data used in the transaction.

2.1.1. Total Protection is a fraud protection solution that will allow Client to recoup a portion of any losses caused by a fraudulent transaction. ClearSale and Client establish a Service Level Agreement (“SLA”) that identifies specific Key Performance Indicator (“KPI”) thresholds ClearSale agrees to meet. Every quarter, ClearSale reconciles its performance against those KPIs, and if they are not met, Client will receive a discount on Client’s invoice as outlined in Section 3.

2.1.2 Total Guaranteed Protection provides 100% guaranteed coverage of any Fraudulent-Transaction Claim incurred by Client. If ClearSale approves a transaction that turns out to be fraudulent and results in a Fraudulent-Transaction Claim, ClearSale will reimburse Client for the entire amount of the Fraudulent-Transaction Claim.

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

Stage 1

Stage 2

Stage 3

Stage 4

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

ClearSale issues Client a recommendation 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 in order 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”).

2.1.4. Unless otherwise stated in the Addendum, ClearSale may elect to challenge Client’s fraudulent-transaction claims on our Client’s behalf, in which case the Client authorizes ClearSale to communicate with third parties (including the Card Networks) for this purpose. The Client’s protection is not affected by whether or not ClearSale challenges (successfully or not) a fraudulent-transaction claim. Likewise, if ClearSale successfully challenges a Fraudulent-Transaction Claim to a Analyzed Transaction, the Client is not entitled to any proceeds or refunded amounts that ClearSale receives following the challenge.

2.2 Fraud Score

ClearSale’s Fraud Score is a solution to help shield potential transactions against fraud by making instant risk predictions, which are represented by a fraud score, i.e., a tool used to gauge risk of a potentially fraudulent transaction before it is processed. All transactions must go through the ClearSale platform, where they are scrutinized by various Artificial Intelligence tools and fraud rules (“Decision Tree”) and are then cross-referenced with internal and outside (public) data sources (“Analyzed Data”). Transactions’ Fraud Score are immediately released to Client for Client’s final decision. ClearSale’s Fraud Score allows the Client to create extensive rule combinations that are uniquely adapted to fulfill their business needs.

Client may include data that are not subject to fraud risk in order 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”).

2.3. 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 is thus incorporated hereto by reference. 

3.           Client reimbursement policy

Subject to the conditions applicable to the Services described herein and the Addendum, ClearSale may discount or reimburse Client for any Fraudulent Transactions (“FTs”) ClearSale had originally recommended that Client accept (“Client Reimbursement Policy”). 

3.1. Total Protection

If Client chooses Total Protection, ClearSale will offset (“Offset”) any surpluses in the KPI thresholds as further outlined in the following subparagraph.

Unless otherwise stated in the Addendum, the measured KPI will be the 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 (FT) by the value of the total number of transactions analyzed by ClearSale (TT) during the same time period. Therefore, the ClearSale Fraud Index = [FTs ($)] ÷ [TTs ($)].

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

  • FTs during month 1 (e.g., January) + FTs during month 2 (e.g., February) + FTs during month 3 (e.g., March) are added together. The Offset percentage will be calculated at the beginning of month 7 (e.g., 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., month 7 (September), month 8 (October), and month 9 (November).
  • In order to be included in the Fraud 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 the fraudulent transaction occurred.

For example:

Fraud Assessment Quarter

Calculation Date

Month(s) Invoices will be Offset

January 1, 2020 - March 31, 2020

July 10, 2020

July 2020, August 2020, September 2020

April 1, 2020 - June 30, 2020

October 10, 2020

October 2020, November 2020, December 2020

July1, 2020 -September 30, 2020

January 10, 2021

January 2021, February 2021, March 2021

October 1, 2020 - December 31, 2020

April 10, 2020

April 2021, May 2021, June 2021

3.2. Total Guaranteed Protection

If Client chooses Total Guaranteed Protection, 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”).  

3.3. Eligibility for the Client Reimbursement Policy:

Only transactions that ClearSale recommends that Client accept and 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 the terms outlined in this Agreement and the Addendum;
  • Submit one hundred percent (100%) of Client’s transactions through the ClearSale platform, unless otherwise stated in the Addendum;
  • Send a written communication to ClearSale via email or through the ClearSale Application indicating that Client has been the victim of a Fraudulent Transaction. If applicable, Client’s written communication shall include the formal notice issued by the financial institution that processed the transaction confirming said fraudulent transaction;
  • Submit Client’s fraudulent-transaction claims to ClearSale for verification within thirty (30) calendar days of the claim issuance date;
  • Unless otherwise stated in the Addendum, 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 agrees to email ClearSale within 12 (twelve) hours of the moment the transaction was approved or declined by Client 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. Should ClearSale determine 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 or settled, refunded, canceled, or if the transaction was fraudulent.

Client shall not be eligible for the Client Reimbursement Policy should 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 that stated in the submitted transaction;
  • The transaction was not reviewed and approved by ClearSale.

3.4. Subsections 3.4.1 to 3.4.4 below only apply to those conditions where the terms fraud is used in reference to chargebacks.

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

Code #37 – Fraudulent Transaction Without Cardholder Authorization

Code #40 – Fraudulent Processing of Transactions

Code #57 – Multiple Fraudulent Transactions or Credit-Card-Activated Telephone Transaction

Code #62 – Counterfeit Transaction

Code #63 – Cardholder Does Not Recognize Potential Fraud

Code #75 – Cardholder Does Not Recognize Transaction

Code #81 – Fraudulent Transaction: Card-Present Situation

Code #83 – Fraudulent Transaction: Card-Not-Present Situation

3.4.2. 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 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 different code number—shall also be eligible for Reimbursement or Offset.

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

3.4.4 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.

3.5. Reimbursement and Offset Logistics and Timeframe:

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

Unless otherwise stated in the Addendum, under Total Guaranteed Protection, ClearSale will reimburse the Client on a rolling monthly basis with a credit note applied to Client’s account.  

Under Total 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 seven (7) calendar days of the date ClearSale issues its invoice, all eligible Reimbursements shall be made within the same billing cycle as that of the written notice received from Client concerning such fraudulent transactions.

ClearSale will strive to accommodate all fraudulent transaction claims notified by Client outside the abovementioned timeframe within the same billing cycle. If this is not feasible, any unpaid Reimbursement or Offset will be applied to the next billing cycle.

4.           Pricing and payment terms

ClearSale will send a monthly invoice to Client for the Services provided by ClearSale during the immediately preceding month, according to the business conditions and pricing details outlined in the Addendum, unless otherwise stated in the Addendum.  Invoices will be sent via email to the addresses provided by Client when registering for its account with ClearSale, unless stated otherwise in the Addendum.

All amounts stated in the invoices and any amounts referenced herein or in the Addendum are in U.S. dollars, unless specifically stated otherwise.

All fees charged by ClearSale do not include any local, state, federal, or other taxes, including sales tax or value-added tax, or any levies or duties of any nature. Client is responsible for paying any such taxes.

Payment shall be made within thirty (30) calendar days following the date the invoice is received by Client.  Any unpaid invoices within this 30-day timeframe shall be deemed past due and will therefore accrue interest as of the thirty-first (31st) 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 Client for unpaid fees, Client 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;

If ClearSale does not—as a matter of courtesy—charge Client interest for a past-due invoice, doing so does not constitute a waiver of ClearSale’s rights to require Client to pay interest as agreed herein if Client should, at a later time, fail to pay Client’s invoices when due.

ClearSale’s assessment of any fee assumes that Client has provided precise and comprehensive information in response to inquiries made by ClearSale and that Client will provide reasonable support to allow ClearSale to perform its obligations under this Agreement and the Addendum. If the information provided by Client materially differs from the descriptions provided to ClearSale, or if Client fails to provide reasonable assistance, then ClearSale (i) 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; or (ii) immediately and automatically terminate the Client’s license to use the Services, without derogating from any other remedies available to ClearSale.

5.                  Performance standards for analysis response time

As indicated in Section 2 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 and listed in the Addendum. The service levels employed by ClearSale (“Service Level”), which are calculated quarterly (every three months), are detailed as follows:

  • 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.
  • 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.
  • Standard. ClearSale will respond to 60% (sixty percent) of Client’s transactions with 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 48 (forty-eight) hours.
  • Plus. ClearSale will respond to 50% (fifty percent) of Client’s transactions with 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.
  • Express. ClearSale will respond to 80% (eighty percent) of Client’s transactions within 1 (one) 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 described in the Addendum.

 

Cumulative Percentage of the Orders for which ClearSale gave an opinion (%)

Hours from Receipt of transaction - Up to (Hours)

Instant

Economy 

 

Basic

Standard 

Plus

Express

Custom

1

100

 

   

50

80

 

Described in the Addendum.

 

3

 

 

 

60

   

6

 

 

   

80

 

24

 

 

60

90

100

100

48

 

95

100

100

   

72

 

100

       

The SLA  chosen by Client 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 SLAs during the abovementioned period.

6.                  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 – 4, which will be based on the magnitude of the issue in relation to Client’s primary business and the availability of any other ancillary methods for overcoming these issues (“Workarounds”).  Each level of the Security 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 supportive application 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 by the Help Desk. If the problem is not resolved within the defined timeframe, 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 that logged the ticket is informed of an estimated resolution time.
  • Subsequent Responses is the rate at which the user that 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.

In the event that 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

7.                  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 all support systems are operational.

A Service Performance Level does not consider the following in its calculation: (1) scheduled interruptions for system maintenance of 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

8.                  Term and duration of agreement

This Agreement is a legally binding contract and will enter into effect as of the date Client either accepts this Agreement online (via electronic signature at the bottom of the final page), or dates and signs a printed copy of this Agreement, or begins using the ClearSale Services outlined in the Addendum, whichever occurs first (the “Effective Date”). 

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

9.           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 as of 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, unless otherwise stated in the Addendum.

ClearSale may terminate this Agreement immediately and without any liability whatsoever, in the event that Client has knowingly engaged in activities that (a) have caused or ClearSale reasonably believes will cause damage to the ClearSale platform, the ClearSale Services, or any of its internal processes related to the Services; (b) cause the ClearSale platform or ClearSale services to breakdown or otherwise become inaccessible by ClearSale for more than twenty-four (24) hours; (c) cause damage to any other property of ClearSale, including ClearSale’s Intellectual Property, reputation, or Goodwill, or that of its parent, affiliates, or subsidiaries; or (d) violate any applicable law 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 (a) the other Party is dissolved; (b) 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; (c) the other Party is adjudicated as bankrupt or insolvent; (d) the other Party makes a general assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law; or (e) if a receiver is appointed to take charge of the affairs and/or assets of the other Party, which is 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 Client within the foregoing 30-day time period; and if applicable, ClearSale shall calculate and apply any Reimbursements or Offsets owed to Client in accordance with Section 3 herein.  The termination of ClearSale’s Services shall not affect any rights accrued by either Party following termination.

 10.        Breach of contract

If either Party 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, the non-breaching Party may terminate this entire Agreement immediately 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 such 30-day period, there remains a good faith dispute between the Parties as to whether the other Party materially breached this Agreement or has cured the applicable breach. The failure of a Party to exercise its rights hereunder with respect to a breach by the other Party shall not be construed as a waiver of such rights nor prevent such Party from subsequently asserting such rights with regard to the same or similar breaches.

11.              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, the ClearSale platform or application; however, it does not grant Client any right to any version enhancement. Except for those 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 or 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 out in Section 12 and elsewhere 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 such username and 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 such 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 in those cases in which Client instructs ClearSale to do so or if the use of such an 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 allows 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 Addendum, 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.  If ClearSale believes that the Client is engaging in such discriminatory routing, ClearSale may require the Client to provide ClearSale with a detailed description of its routing logic. 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 that will enable the ClearSale team to develop and customize a statistical model of Client’s business, assist in setting up a 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. Unless otherwise stated in the Addendum, 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.

The Client agrees to give ClearSale at least 30 days prior notification of their intent to change their current product or services types, their trade name, substantial change in the basic nature of their business, or any change in the control or ownership of the Client or their parent entity.

12.              Data protection and non-disclosure

Client hereby authorizes ClearSale to receive or collect information on Client’s relevant end user (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 purposes of 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 either 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 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 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 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 (any such purpose, a “Recovery Purpose”) 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 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 circumstance shall ClearSale receive, process, store, or communicate any data that is subject to the Payment Card Industry Data Security Standard (“PCI DSS”) and 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 (a) 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”); (b) Client’s Privacy Notice, if any; and (c) 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 this Agreement.

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 (“Representatives”) 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 Representatives in performing 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.

13.              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 the owner of the Confidential Information (the “Disclosing Party”) reveals to the other Party (the  “Recipient Party”).  The Confidential Information shall only be used for performing 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 the 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, the ClearSale platform, or application (including republication on another website);
  • Sell, rent, or sublicense material from WebService, the ClearSale platform, or application;
  • Copy, modify, translate, reverse engineer, decompile, disassemble, edit, or modify the 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 Recipient 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 such third Party, who may be the owner of such trademark.

Client’s and ClearSale's obligations under this Section shall survive the termination of this Agreement.

14.              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.
  • Not engage, permit or encourage any third Party to probe, scan, or test the vulnerability of any system or network or to breach any security or authentication measures.
  • Not engage, permit or encourage 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 the ClearSale 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.

15.        Marketing and publicity

Unless otherwise agreed in writing by the negotiating Parties, 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.

16.              Consent to electronic communications

By using the ClearSale 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.

17.        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 an independent company providing professional services to Client, and 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.

18.        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 such Party (each, 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 for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use its best efforts to re-commence 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.

19.              Amendments to the agreement

ClearSale may revise these terms and conditions from time-to-time. If ClearSale makes any material changes, ClearSale may notify the Client by sending the Client an email to the last email address provided (if any) and/or by prominently posting notice of the changes on ClearSale’s website. Any changes to these terms and conditions will be effective upon the earlier of thirty (30) calendar days following the dispatch of an e-mail notice to the Cleint (if applicable) or thirty (30) calendar days following the posting of notice of the changes on ClearSale’s website. Continued use of the Services following notice of such changes, unless otherwise agreed in writing by the negotiating Parties, shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

ClearSale shall not be entitled to modify, remove or add features, cancel, revoke, or suspend the Services or Client’s access to all or part of the Services unless they 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.

20.              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 CLEARSALE’S SERVICES; (2) ANY LIABILITY FOR ECONOMIC LOSS ARISING FROM CLAIMS OF DEFECTS, PRODUCT FAILURE, NEGLIGENCE, FAILURE TO WARN OR INSTRUCT, AND 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.

21.              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 SUCH A 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 CLEARSALE’S 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 CLEARSALE’S 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.

22.        Dispute resolution

22.1.   A. 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 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 a dispute related to the terms of this Agreement along with said Party’s wish to negotiate a resolution to said dispute. Within fifteen (15) calendar days after delivery of such notice, the receiving Party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each Party’s position and a summary of arguments supporting that position, and (b) 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 (“Second Meeting”).  All subsequent meetings, if any, shall follow the same procedure as stated above, i.e., (a) a new date, time and place within five (5) business days of the previous meeting, and (b) 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 Subsection B below.  Each Party shall be responsible for their 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 Subsection A 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 Subsection A above, then the matter will proceed to mediation as set forth below.

22.2.   B. Mediation

If the dispute has not been resolved by negotiation in accordance with Subsection A 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 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 day, until there is a settlement agreement, or 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 Subsection A 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.

22.3.   C. Litigation

Any dispute not resolved through negotiation or mediation in accordance with Subsections A and B 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 Subsections A and B above.

 23.        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.

24.        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.

25.              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 that was not successfully negotiated or mediated pursuant to Section 20 herein.

26.              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.

27.              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 action to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby, and that the same do not and will not conflict or cause a default with respect to its obligations under any other agreement; (iii) has duly executed and delivered this Agreement; and (iv) this Agreement is enforceable against it in accordance with its terms.