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Clearsale Terms and Conditions

Introduction

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

These terms and conditions, together with the attached proposal, constitute a binding legal agreement (the “Agreement”) between You (either as an individual or entity, hereinafter, “You”) and CLEARSALE, LLC (“ClearSale,” “We,” or “Us”) regarding your use of our Services.

Clearsale Services

ClearSale offers a fully outsourced fraud management solution that provides You with a recommendation to either “approve” or “deny” online transactions. We offer a variety of products, including ClearSale Total Protection.

Clearsale Total Protection

If we are hit by a higher chargeback percentage versus the target we agreed (described on the Business Proposal), we will offer you discounts, according to what is described on the Business Proposal. In order for the terms of ClearSale Total Protection to apply, You must:

(1) Follow all ClearSale terms and conditions, as outlined in this Agreement;

(2) Provide Us with written notice by email, indicating that You have received a chargeback from the bank. Your written notice must include the formal notice from the bank indicating that the purchase resulted in a chargeback due to fraud;

(3) Receive a minimum of 75% of the chargebacks for the period within 60 days of the date the transaction is placed;

(4) Comply with the conditions and specifications on ClearSale’ API guide, unless otherwise stated in the Business proposal;

(5) Effectively decline all transactions we suggest YOU turn down;

We will audit and qualify the chargeback and verify that the reason for the chargeback was fraud. ClearSale Total Protection only applies to chargebacks related to identity fraud, and is not liable for chargebacks based on commercial disagreements, customer dissatisfaction with the product purchased or deliberate and accidental purchases made by the card owner which are later disputed. Below are the reason codes eligible:

  • Code #37 – Fraud Transaction No Cardholder Authorization
  • Code #40 – Fraudulent Processing of Transactions
  • Code #57 – Fraudulent Multiple 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 Environment
  • Code #83 – Fraudulent Transaction: Card Not Present Environment

ClearSale will also classify chargebacks from different reason codes in order to determine if those might be fraudulent. Any chargeback deemed as fraudulent by ClearSale will be covered by ClearSale Total Protection.

Chargebacks received as the result of processing error and/or buyer-seller disputes are not eligible for covered by ClearSale Total Protection. These types of chargebacks are typically prevented through best practices or may be challenged and won by the merchant.

Card processors may update their chargeback codes from time to time, which may not be fully reflected above. In case of code or category omission as reported by the card processor, ClearSale will determine in its sole discretion the eligibility of a submitted transaction for coverage under the Guaranteed Services.

It takes up to seven (7) business days for our team to review a chargeback and provide a final analysis.

Account Registration

You must execute our proposal, terms and conditions, register an account with Us and maintain accurate and complete information for your account. Only You are authorized to use your account and Services with us. You are responsible for keeping all data accessed on our platform private, including but not limited to your “login information,” “apikey,” “client ID,” and “client secret”.

When using our Service, You are also subject to all terms outlined in the attached proposals (“Proposal”). All such policies are incorporated by reference into these Terms and Conditions and are part of this Agreement. If these terms are inconsistent with any requirements in the Proposal, the terms of the Terms and Conditions will control to the extent of any inconsistency.

Pricing and Invoicing

You will receive an invoice for our Services once every month, unless otherwise stated in the Proposal. Invoices are sent via email to the address provided to us in your file unless alternate arrangements are made. All payments must be in U.S. dollars and You are responsible for all applicable taxes. The offered price can be found in the attached Proposal (“Price”). ClearSale has the discretion to modify Price at any time following publication or notice of the change. You must pay within ten (10) days of the date of the invoice. Invoices not paid promptly will bear interest from the thirtieth day from the date they are rendered at the rate of 12% per annum for the first sixty days and thereafter at 18% per annum, until paid. Additionally, in the event that We bring suit against You for unpaid fees, You agree (a) that the exclusive forum for any such claim shall be the state courts located in Miami-Dade County, Florida, to the jurisdiction of which You irrevocably consent, (b) to pay our legal fees and costs incurred in connection with the filing of such a lawsuit, the prosecution of any appeals, and the collection of any judgment against You, (c) that We may effect service of process upon You by mail, telefax, courier, or email to any address We have on file for You, or (i) to the Secretary of the State of Florida or (ii) to any consulate in the of the country of which You are a citizen, each of which You irrevocably appoint as your agents for service of process for the purposes hereof, and (d) that if You have asked us to form a legal entity, then You are personally responsible for the legal fees incurred with respect to such entity. You are responsible for any costs and fees incurred in collecting amounts due. If We don’t – as a matter of courtesy – charge You interest with respect to late payment, this does not constitute a waiver of our right to require You to pay interest as agreed herein, if You should at a later time not pay your invoices when due.

Performance discount:

For every surplus on chargeback, versus the target, Clearsale will offer a discount on the service.

  • The discount policy is applied only if a given indicator has not been surpassed
  • Discounts shall be taken exclusively on invoices, so that if the invoice amount is larger than the amount invoiced for that month, the balance of the discount shall be deducted from the subsequent invoice.
  • If this contract is terminated other than for cause, ClearSale shall grant any discounts due up until the date the contract is terminated. These values shall be calculated and paid according to the original deadlines in the discount policy.
  • Chargebacks included in this discount police only include fraud-related chargebacks.

Calculation timeline:

The calculation is done on a quarterly (three-month period) basis, in the following way:

  • Reference quarter: month 1 + month 2 + month 3. The discount % will be calculated at the beginning of the month 7, with reference to the chargebacks of the quarter formed by months 1, 2 and 3 (accrual basis). The discount will then be applied to the invoice of months 7, 8 and 9.
  • The quarterly discount shall be split into three installments, to be applied to the three invoices subsequent to the calculation period.
  • In order to be considered in the chargeback ratio, and used for the discount/bonus policy, chargebacks must be reported no less than 8 days prior to the quarter's chargeback appraisal.
  • For the purposes of allocating transactions to a given quarter, the chargeback date shall be the date of the transaction that generated that chargeback.
  • For instance:
Date of calculation Fraud assessment period (Numerator: chargebacks' value generated out of transactions placed during the referenced period / Denominator: total value of revenue during the referenced period that contained risk of chargeback - usually all transactions carried out with a credit card) Financial discount/bonus taken on the invoice of periods
July '17 January 1st 2017 - March 31st 2017 Jul'17, Aug'17, Sep'17
October'17 April 1st 2017 - June 30th 2017 Oct'17, Nov'17, Dec'17
January'18 July1st 2017 -September 30th 2017 Jan'18, Feb'18, Mar'18
April'18 October 1st 2017 - December 31st 2017 Apr'18, May'18, Jun'18

Term and Duration of Agreement

You understand and agree that in order for the ClearSale model to work, neither party may cancel this Agreement during the first 30 days of the Agreement (“Introductory Term”). If You cancel during the Introductory Term, You shall pay for the remaining payments in the Introductory Term, estimated according to the information provided by You during proposal formulation. After the Introductory Term, either party may cancel by providing advance written notice to the other party with at least thirty (30) days written notice, unless otherwise stated in the business proposal. This agreement shall remain in effect for one (1) year from its effective date. Thereafter, it shall automatically renew in increments of one (1) year on the day after the anniversary date. ClearSale has the discretion to modify the term in the Proposal in writing. ClearSale reserves the right to cancel or suspend your Services at any time at our discretion for any reason whatsoever with prior notice to You. On termination, You shall immediately pay to Us all of our outstanding unpaid invoices. The termination of our Services will not affect the rights of either party that have accrued as of termination. ClearSale reserves the right to modify the Service at any time without notice to You. ClearSale will have no liability whatsoever for and may at any time change, modify, update, remove or add features to the Service or suspend or revoke your access to or use of all or part of the Service.

License to Use ClearSale’s Service

Subject to your compliance with these terms and conditions, We grant You a non-exclusive, revocable and non-transferable license to access our WebService and use our Services. ClearSale is the sole and exclusive owner of all intellectual property and software contained in its WebService product. You hereby agree not to infringe any of ClearSale’s intellectual property rights, and further, to abide by the terms of use herein contained. You must comply with all applicable laws when using our Services. You may view, download for caching purposes only, and print information from the WebService for the limited purpose of reviewing and denying purchases made on your website that have been reviewed, approved or denied by ClearSale, subject to the restrictions set out below and elsewhere in these terms and conditions.

During the term of the Agreement, and for a period of ten (10) years following the end of this Agreement , You must not:

  1. republish material from WebService, our platform or application (including republication on another website);

  2. sell, rent or sub-license material from WebService, our platform or application;

  3. show any material from WebService, our platform or application to the public;

  4. edit or otherwise modify any material on WebService, the logged area or application;

  5. copy, modify, translate, reverse engineer, decompile or disassemble our WebService, our software or application or create derivative works based thereon;

  6. reproduce, duplicate, copy or otherwise exploit material on our WebService, the logged area or application for a commercial purpose; or

  7. redistribute material from WebService, the logged area or application.

We reserve the right to restrict access to areas of WebService at our discretion. We may vary the Services available on WebService in our absolute discretion at any time, with or without notice.

This license does not grant You any right to any version enhancement, update or upgrade to our WebService, our platform or application. We may revise or modify our WebService, our platform and application or its functionality or any part thereof at our absolute discretion.

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 our Services available. Except for those rights expressly granted in these terms and conditions, no other rights are granted, either express or implied. All trademarks, logos and service marks displayed on our Website are our property or the property of other third parties. You are not permitted to use these trademarks without our prior written consent or the consent of such third party, which may own the trademark.

ClearSale Terms and Conditions of Use

Our fraud risk management software includes establishing a “cutoff score” so that We can properly evaluate data and detect fraudulent purchases. We may require information from You from time to time to improve our Services, customize a historical database that will enable our team to develop and customize a statistical model for your business, assistance setting up a customized system integration between Us and assistance with implementation of our statistical model.

In order for our Services to work, We require that You comply with the conditions and specifications outlined in our “API Guide” , unless otherwise stated in the Business proposal. ClearSale may make changes to the API Guide from time to time.

ClearSale may request that You make changes to the integration system from time to time. We also require that You deny and refuse to process any and all transactions that We indicate or suspect are fraudulent.

Acceptable Use and Legal Compliance

You must not use our Services in any way that causes, or may cause, damage to ClearSale or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

You must not use our Services, or information obtained through our Services, to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.

ClearSale is not a consumer agency as defined by the Fair Credit Reporting Act (“FCRA”). The fact that ClearSale turns down a transaction does not mean that we are rating a consumer. ClearSale only reflects the risk of identity theft inherent in a given transaction, and may not be used as a factor for establishing the consumer’s eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under the FCRA.

Service Performance Level

Clearsale Systems Availability

  • Target: 98%
  • Calculated: Monthly
  • Clearsale Systems: DAC/PABX, CTI, network equipment, servers, Internet connection. Exceptions: Systems and equipment that are the responsibility of You.
  • Our service performance does not consider the following in its calculation: (1) scheduled interruptions for system maintenance that the contracting party has been notified about, (2) acts of God or force majeure resulting from malware or other third party attacks that render the system unavailable and (3) interruptions due to failure in the supply of telephone services by the telephone utility.

Customer Support

  • This metric includes the typical help desk reporting and problem resolution guarantees offered by ClearSale. The metric below describes the type of help based on severity level. Severity level and response and resolution times are assigned according to their impact on customers:

    • Priority 1 Calls: Emergencies or critical situations such as "system stopped” where the ClearSale system is continuously crashing or non-operational and effects the production environment. Time to start service in response to call: 1 (one) hour or less.
    • Priority 2 Calls: High-impact situations associated with the operation of the ClearSale System. Time to start service in response to call: 4 (four) hours or less.
    • Priority 3 Calls: Limited impact or intermittent technical problems. Time to start service in response to call: 1 (one) business day or less.
    • Priority 4 Calls: Those involving questions on how to use or implement the ClearSale system. Time to start service in response to call: 2 (two) business days or less.

Analysis Response Time

  • The response time to issue an opinion is defined below, varying according to the product described in the Business Proposal and detailed according to the columns' titles from the following table.
  • Calculated: quarterly (three-month periods).
  • The limiting response time is based on the percentages below:

Hours from orders' receipt - up to (Hours)

Economy

Cumulative percentage of the orders answered (%)

Basic

Cumulative percentage of the orders answered (%)

Standard

Cumulative percentage of the orders answered (%)

Plus

Cumulative percentage of the orders answered (%)

Express

Cumulative percentage of the orders answered (%)

Custom

Cumulative percentage of the orders answered (%)

1

     

50

80

Described on the Business Proposal only

3

   

60

   

Described on the Business Proposal only

6

     

80

 

Described on the Business Proposal only

24

 

60

90

100

100

Described on the Business Proposal only

48

95

100

100

   

Described on the Business Proposal only

72

100

       

Described on the Business Proposal only

These SLAs for Service Performance Level shall not be in effect for the first four (4) weeks of normal operations. This period is required to align the new operation details with procedures and systems from You.

User IDs and Passwords

When You register with our WebService, We will provide You with a confidential user ID and password. You must ensure that our user ID and password are kept confidential. You must notify Us in writing immediately if You become aware of any unauthorized use of your account or password. You are responsible for any activity on our Website arising out of any failure to keep Your password confidential, and may be held liable for any losses arising out of such failure. You must not use any other person’s user ID or password to access our WebService. We may disable your user ID and password in our sole discretion with prior notice to You.

General provisions

Upon acceptance, You agree to the following:

  • Use the data provided by ClearSale software and/or ClearSale risk analysts as subsidy for risk and business decisions, refraining from using them as the sole and exclusive justification for completing or deciding not to complete transactions with customers or third parties.
  • Safeguard the security of the software login and password, which may never be shared with unauthorized third parties.
  • Maintain hardware and software as required by the configuration provided by ClearSale and for integration and use of the software as per the API Guide, unless otherwise stated in the Business proposal.
  • Maintain an operational WebService or equivalent to systematically receive ClearSale screens and evaluations in a manner that meets the technological standards laid out in the API Guide, unless otherwise stated in the Business proposal.
  • Provide information about Your commercial process and make every effort to seek and supply information related to the sales process and Your customers to enable the continuous improvement of the statistical models developed, and ensure the effectiveness of ClearSale services.
  • Refrain from using the data obtained to embarrass or coerce third parties, or as justification for acts that violate or threaten the rights of third parties.
  • Not sell, transfer or enter into agreements to transfer information to other companies without the prior expressed consent of ClearSale, which shall under no circumstances be assumed.
  • Provide all of the information and documents required for the full and faithful performance of this agreement, as well as all transaction’s reports and records, among others.
  • Inform and ask Your customers for authorization to store their data in a ClearSale proprietary database.
  • Refrain from using, retaining or duplicating data provided by the software to create any file, list or database for Your own or third party use.
  • Refrain from disclosing or using the data provided by the software to defend You from administrative or judicial claims under penalty of being solely and entirely liable for any damages or convictions resulting from such claims.
  • Integrate the systems within the deadlines established in the time-lines.

Limited Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW WE EXCLUDE ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO OUR SERVICES AND THE USE OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE AND/OR THE USE OF REASONABLE CARE AND SKILL). WE DISCLAIM: (1) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS ANY CONTRACTS OR REPRESENTATIONS BY ANY PARTY RELATING TO OUR SERVICES; (2) ANY LIABILITY FOR ECONOMIC LOSS ARISING FROM CLAIMS OF DEFECTS, PRODUCT FAILURE, NEGLIGENCE, FAILURE TO WARN OR INSTRUCT, 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 TO OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY INFORMATION PROVIDED IF ERRONEOUS; AND RESCISSION OR REVOCATION OF ACCEPTANCE. THE REMEDIES SET FORTH ABOVE

ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND ARE IN LIEU OF ALL OTHER REMEDIES, EXPRESS OR IMPLIED.

Limitations and Exclusions of Liability

NEITHER CLEARSALE NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS INFORMATION, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF TRUSTED PATTERNS OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE OUR SERVICES.

THE MAXIMUM TOTAL LIABILITY OF CLEARSALE AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS OR OTHERWISE RELATING TO OUR SERVICES WILL NOT EXCEED THE TOTAL FEES, IF ANY, PAID BY YOU FOR YOUR ACCESS TO AND USE OF OUR SERVICES. IF A COURT FINDS THE MAXIMUM TOTAL LIABILITY UNDER THE PREVIOUS SENTENCE UNENFORCEABLE, THE MAXUMUM TOTAL LIABILITY OF CLEARSALE AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS OR OTHERWISE RELATING TO OUR SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED $50. YOU FURTHER AGREE THAT OUR SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABIITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS 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 OF ITS ESSENTIAL PURPOSE.

Confidentiality and Non Disclosure

Confidential Information shall include any knowledge, data or information regarding corporate, financial/economic, technological and/or management aspects such as products, systems, techniques, strategies, methods of operation and any other owned by one party and disclosed to the other by force of this agreement. The terms of this agreement also constitute confidential information. Confidential information shall only be used for the performance of this agreement and the conditions therein. Confidential information shall not be used for any other purpose, nor disclosed to third parties and/or employees not directly involved in the performance of this agreement without the prior written authorization of the Party owning the confidential information.

The following shall not be considered confidential information: (i) Information that was fully or partially in the public domain when disclosed, or the falls into the public domain after being disclosed under this Agreement; (ii) were known to the other Party at the time of disclosure; (iii) due to judicial or other government authority order to disclose.

ClearSale represents and warrants that it is aware that all of the data processed by the software is the exclusive property of You, and agrees not to share all or part of it with third parties.

Marketing and Publicity

You agree that We may disclose that You are a customer of ClearSale and We may include your name and logo in any lists of customers on our website and in other marketing collateral and press releases. . The Parties agree that ClearSale may post a testimonial or business case example on its website once You confirm in writing that You are satisfied with the services provided by ClearSale.

Modification of Terms and Conditions and Electronic Communications

We may revise these terms and conditions from time-to-time. If We make any material changes, We may notify You by sending You an email to the last email address You provided to Us (if any) and/or by prominently posting notice of the changes on our Website. Any changes to our terms and conditions will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to You (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Website. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

You consent to receiving electronic communications from Us. These communications may include notices about your account and information concerning or related to our Services. You agree that any notices, agreements, disclosures, or other communications that We sent to You electronically will satisfy any legal communication requirements, including that such communications be in writing.

Severability

If a provision of these terms of use is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

Entire Agreement

The Proposal and Terms and Conditions will constitute the entire agreement between You and Us in relation to your use of our WebService and Services, and supersede all previous agreements in respect of your use of our Services.

Governing Law and Jurisdiction

These terms and conditions will be governed by and construed exclusively according to the laws of the State of Florida, United States, without reference to choice of laws. In the event of any legal suit, action or proceeding in any way arising out or relating to any of these terms of use You hereby irrevocably consent to personal jurisdiction and venue exclusively in a court of competent jurisdiction in Miami Dade County, Florida, United States, including the United States District Courts in the Southern District of Florida if such courts can obtain jurisdiction; or any other jurisdiction where suit may be properly commenced, at our election.

Waiver Of Jury Trial

THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY, WAIVE THE RIGHT WHICH ANY MAY HAVE TO TRIAL BY JURY IN RESPECT OF 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.