Version dated April 22, 2025.
Before you read the terms below, we believe it is important that you understand the main points, as follows:
CLEARSALE PLEDGES TO
CLEARSALE PLEDGES NOT TO
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:
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 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”, "Fraud Notice", “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.
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”).
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:
3.1. Complete Decision ClearSale, Complete Decision ClearSale Guaranteed, Instant Decision ClearSale and Automatic Decision ClearSale
Complete Decision ClearSale, Complete Decision ClearSale Guaranteed, Instant Decision ClearSale and Automatic Decision ClearSale 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 the 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 Instant Decision ClearSale and Automatic Decision ClearSale solutions, where the decision must be automatic, 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 Instant Decision ClearSale and Automatic Decision ClearSale 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 Instant Decision ClearSale solution, ClearSale may suggest that a random sample of transactions is reviewed (after being released) by manual reviewers.
Finally, ClearSale is then informed by Client as to whether the transaction was ultimately fulfilled, refunded, canceled, 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 communication through a phone call, text message, push notification, or similar method with the legitimate owner of the data used in the transaction.
3.1.1. Complete Decision ClearSale, Instant Decision ClearSale and Automatic Decision ClearSale are fraud protection solutions 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 IV.
3.1.2 Complete Decision ClearSale Guaranteed provides 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 the Client for the amount of the Fraudulent-Transaction Claim up to USD 15,000 per Claim. This cap will be proportionally applied to ClearSale’s fees. The reimbursement does not include bank fees, Client is responsible for paying any such fees.
3.1.3 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”).
3.1.4. 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.
3.2 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”).
3.3. ClearSale may be required by Client to provide implementation, consulting, training, auditing, or support services (“Data Science Services”) which may be carried out for a fee agreed between the parties
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.
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 and Offset Policy”).
4.1. Complete Decision ClearSale, Instant Decision ClearSale and Automatic Decision ClearSale
If Client chooses Complete Decision ClearSale, Instant Decision ClearSale or Automatic Decision ClearSale, 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:
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 |
4.2. Complete Decision ClearSale Guaranteed
If Client chooses Complete Decision ClearSale Guaranteed, ClearSale will issue a reimbursement of up to $15,000.00 USD of the Analyzed Transaction recommended for acceptance by ClearSale that was ultimately found to be fraudulent (“Reimbursement”).
This cap will be proportionally applied to ClearSale’s fees (e.g. if ClearSale’s fee is 1% per transaction, and ClearSale receives a transaction of $20,000, ClearSale would charge $150. If a chargeback ever arises, the reimbursement or offset would be $15,000).
4.3. Eligibility for the Client Reimbursement and Offset Policy:
Only transactions that ClearSale recommends that Client accept and are ultimately determined to be fraudulent will be eligible for the Client Reimbursement and Offset Policy.
In order for the terms of ClearSale’s Client Reimbursement and Offset Policy to apply, Client must:
In case the Client fails to comply with ClearSale’s System Integration guidelines and API Guide, leading to a Fraud Attack due to the lack of data points integrated, or any fragility on Client’s website that exposes customer information and/or facilitates the action of a fraudster is identified, then ClearSale shall not be held liable in any way whatsoever for the said attack. Should ClearSale determine that a Fraud Attack took place, ClearSale shall then deliver additional information to the Client in support of this determination.
Client shall not be eligible for the Client Reimbursement and Offset Policy should any of the following events occur involving a Fraudulent Transaction:
ClearSale’s chargeback guarantee does not include net term payments. While the client is eligible for a refund related to any amount charged from client by ClearSale when such an order was unknowingly approved, the client will not be eligible for any kind of chargeback guarantee in transactions which net term payments were the form of payment used.
4.4. Subsections 4.4.1 to 4.4.4 below only apply to those conditions where the terms fraud is used in reference to chargebacks.
4.4.1. 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
4.4.2. 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.
4.4.2.1. When submitting a chargeback under a different reason code, Client must also share with ClearSale a report of every communication with the final customer. Omitting communication might lead to a reimbursement decline.
Examples of situations where coverage may apply are listed below. However, additional context might still lead to a reimbursement decline if ClearSale concludes that the customer who filed the chargeback is not acting in bad faith.
Examples of situations where coverage will not apply:
4.4.3 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.
4.4.4 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.
4.5. Chargeback exceptions and limitation
ClearSale will reimburse or offset amounts up to USD 15,000.00 per Claim. This cap will be proportionally applied to ClearSale’s fees (e.g. if ClearSale’s fee is 1% per transaction, and ClearSale receives a transaction of $20,000, ClearSale would charge $150. If a chargeback ever arises, the reimburse or offset would be $15,000).
Clearsale may not reimburse a chargeback or a group of chargebacks to the customer, at its own discretion, if any of the liabilities set forth below are identified and proven:
Transactions that do not contemplate all the requirements mentioned in these terms and conditions.
4.6. 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 and Offset Policy.
Unless otherwise stated in the Addendum, under Complete Decision ClearSale Guaranteed, ClearSale will reimburse the Client on a rolling monthly basis with a credit note applied to Client’s account.
Under Complete Decision ClearSale, Instant Decision ClearSale and Automatic Decision ClearSale, 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.
4.7. Chargeback Representment
Unless otherwise stated in the Addendum, and upon ClearSale’s request, Client agrees to assign all of its rights, title and interest in and to any claim(s) Client may have that eligible to Client Reimbursement and Offset Policy, including the right to dispute chargeback claim(s) with the applicable credit card issuer or payment processor, and shall provide all assistance reasonably requested by ClearSale with respect to such disputes. Client acknowledges that ClearSale may appoint an affiliate or a third party to act on its behalf in connection with the dispute of such claim(s).
With respect to any successfully disputed claim(s), if any sum is deposited in or credited to an account held by Client (or any agent or affiliate of Client), Client shall notify ClearSale within 10 business days of said recovery. The same amount will be returned or credited back to ClearSale, either at the end of the current month as a net against claims eligible for Client Reimbursement and Offset Policy, or such amount will be added to Client’s next invoice.
ClearSale will make available on the Application 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.. A weblink to download the invoices will be sent via email to the addresses provided by Client when registering for its account with ClearSale.
All amounts stated in the invoices and any amounts referenced herein or in the Addendum are in U.S. dollars and must be paid in the same currency, unless specifically stated otherwise in the Addendum.
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 monthly interest of one percent (1%) until paid, and a two percent (2%) penalty. The lack of payment for a period longer than 60 (sixty) days may give rise to the temporary suspension or the unilateral termination of this Agreement without prior notification and, consequently, the suspension of the guarantees offered herein, at the discretion of ClearSale. ClearSale may also contract a third party company to make collections, as well as make the assignment of credits to any third party.
The price does not include the taxes, fees, and charges generated by banking expenses, bank transfers, or other expenses that Clear Sale may incur for the custody and transfer of the retained amounts.
In the event of a modification in the current tax legislation that leads to the creation of new taxes, an increase in the calculation basis and/or rate, or that in any way increases the financial burden of the Agreement, the Parties shall negotiate in good faith any changes to the Price, and under no circumstances will unilateral increases be permitted. If the Parties fail to reach an agreement on the new Price, the Parties may terminate the contract without charge or penalty.
Prices can be adjusted, automatically and regardless of prior notice, as of their effective date, by applying the CPI (Consumer Price Index), annually. In the hypothesis of extinction or prohibition of adoption of the agreed index, the legally indicated index will be used to replace it, or the one that best reflects the variation of the costs of the contracted services.
ClearSale is hereby authorized to reconcile any outstanding credits and debits that may arise between the Parties pursuant to any Agreements duly executed by them. For the avoidance of doubt, ClearSale reserves the right to deduct any reimbursements or offset of chargebacks from any invoices that are past their due date. This provision is intended to ensure a balanced financial relationship between the Parties and streamline the resolution of any financial discrepancies.
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.
The Service Level Agreement corresponds to ClearSale’s response speed in deciding whether to accept or decline a 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:
|
|
Cumulative Percentage of the Orders for which ClearSale gave an opinion (%) |
||||
|
Time from Receipt of the transaction - Up to (Time) |
Instant |
Automatic |
Plus |
Express |
Custom |
|
Real-Time |
100 |
|
|
|
Described in the Addendum |
|
1 minute |
|
100 |
|
|
|
|
1 hour |
|
|
50 |
80 |
|
|
3 hours |
|
|
|
|
|
|
6 hours |
|
|
80 |
|
|
|
24 hours |
|
|
100 |
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.
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 |
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:
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 |
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 |
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.
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.
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.
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. 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.
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. In this respect, ClearSale is committed to acknowledging the receipt of information security vulnerabilities reports within 24 hours.
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:
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.
All intellectual property referring to the Software commercialized by ClearSale, including the software itself and the respective manuals, documents, reports, and any other training, support and maintenance materials that may come with it, belong exclusively to ClearSale, which holds all associated rights, including copyrights, software, trademarks, patents, know-how, commercial secrets, and any others, referring to the Product and to the software incorporated therein, considered herein as a whole and in any of its parts, as well as to the underlying methodology and technology. Any reports, presentations and opinions produced by ClearSale's Software or by ClearSale's analysts may not be copied, altered, transmitted, licensed or sold, by the Client, to third parties. If the licensing of software and/or rendering of the Services by ClearSale results in invention, discoveries, improvements or innovations, the property rights will belong to ClearSale. Any customizations or improvements made to ClearSale’s software, whether or not at the request of the Client, are the exclusive property of ClearSale, and the Client may not claim any moral and patrimonial copyrights on such customizations or improvements. ClearSale is the exclusive owner of all the intellectual property rights of the software, specifications of webservices and codes for integration with third party software, which includes protocols, connectors and scripts developed by ClearSale. Any claim by employees, agents and collaborators of the Client or third parties, related to the intellectual property rights of the specifications of webservices and integration codes with third party software, developed solely by the Client, will be of the exclusive responsibility of the Client, and may not cause any direct or indirect damage to ClearSale, and the Client must be subrogated in any and all obligations and burdens opposing ClearSale. The Client, by itself and by its employees, agents, collaborators and third parties that may have access to ClearSale's software due to this Agreement, undertakes not to make or allow reverse engineering, nor translate, decompile, copy, modify, reproduce, rent, sublicense, publish, divulge, transmit, loan, distribute, or in any other way dispose of ClearSale's software, without prior written authorization. The Client undertakes not to remove, hide or alter, totally or partially, any notification of patent, copyright, trademark, computer program, industrial secret or notice of reservation of rights, existing in ClearSale’s software and in its respective documentation, as well as not to remove or circumvent any lockout or security mechanism that may exist in ClearSale’s software that restricts access to specific functionalities.
“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:
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.
The Parties, in compliance with the principles and general rules, national and international, which aim to combat corruption, acknowledge that (i) shall not promise, offer or give to whomsoever, or accept or undertake to accept from whomsoever, for their own account or through third parties, financial advantages or benefits of any kind that constitute illegal practice or corruption under the laws of any country, either directly or indirectly regarding the object of this Contract, or otherwise not related to it, and shall also ensure that their employees and collaborators act in the same way; (ii) shall not promise, offer or give, on their own or through third parties, financial advantages or benefits of any kind to agencies, agents and public offices, registry offices, candidates for public office, political parties and third parties related to any of these; (iii) shall not finance, fund, sponsor or in any way subsidize the practice of illegal acts, with or without the purpose of obtaining improper advantages for themselves, for the other Party or for a company / company related to it or belonging to its group; (iv) shall not use a natural or legal person to hide or disguise their real interests or the identity of the beneficiaries of the practice of illicit acts, as well as other facts arising therefrom; (v) shall not violate any anti-corruption laws, rules or regulations, under penalty of contract termination and respective communication to the competent authorities, being the respective violation considered irreparable; and (vi) shall make aware and ensure that all its employees, agents, representatives, among other third parties involved in the performance of the obligations assumed, are aware and comply with the provisions of this section.
Upon acceptance, Client agrees to the following:
If there is any inconsistency between any other support documents executed by the Parties and these terms and conditions, these terms and conditions will prevail in relation to the relevant Services except where the support document specifically references a provision of these terms and conditions and modifies or disapplies it.
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.
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.
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.
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.
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.
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.
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.
CLEARSALE IS NOT LIABLE FOR: (I) MISUSE OF THE CONTRACTED SOFTWARE AND FOR ANY PROBLEMS RESULTING FROM THIS MISUSE, BY THE EMPLOYEES, AGENTS, COLLABORATORS OR THIRD PARTIES LINKED TO THE CLIENT; (II) DAMAGES AND LOSSES RESULTING FROM THE INCORRECT OR UNDUE USE OF THE SOFTWARE BY THE CLIENT (III) TOTAL OR PARTIAL UNAVAILABILITY OF THE SOFTWARE, AS A RESULT OF TECHNICAL AND/OR OPERATIONAL MAINTENANCE; (IV) PROBLEMS IN THE SOFTWARE RESULTING FROM THE USE OR CONFIGURATION OF THE CLIENT'S SOFTWARE OR HARDWARE IN DISAGREEMENT WITH THE SPECIFICATIONS PROVIDED BY CLEARSALE; (V) ANY GUARANTEE, MAINTENANCE OR SUPPORT RELATED TO THE QUALITY, CAPACITY, OPERATIONALITY, FUNCTIONALITY OR ADEQUACY OF THE CLIENT'S OR THIRD PARTY'S SOFTWARE WITH THE CLEARSALE’S PLATFORM; AND (VI) CLIENT NOT RECEIVING THE AMOUNTS RESULTING FROM THE SALE OF ITS PRODUCTS OR SERVICES.
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 20% OF THE TOTAL FEES, IF ANY, PAID BY CLIENT FOR CLIENT’S ACCESS TO AND USE OF CLEARSALE’S SERVICES UP UNTIL THE DAMAGING EVENT. IF THE TERM OF THIS AGREEMENT EXCEEDS 12 (TWELVE) MONTHS, THIS LIABILITY WILL BE LIMITED TO 20% (TWENTY PERCENT) OF THE AMOUNT RECEIVED BY CLEAR SALE IN THE LAST 12 (TWELVE) MONTHS PRIOR TO SUCH EVENT.
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.
25.1. 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.
25.2. 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:
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.
25.3. 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.
This Agreement may not be assigned by Client without ClearSale’s prior written consent, which may only be granted at ClearSale’s sole discretion.
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.
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 XXV herein.
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.
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.