By using the Fraud.net's Fraud Prevention service or any other Fraud.net services (collectively, the "Service") you (the "Customer") agree to be bound by the following terms and conditions (the "Terms of Service") as provided by Fraud.net, its affiliates, successors, the Fraud.net website or any successor website (collectively, "Fraud.net"). Customer should carefully read the following Terms of Service before using the Service. Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by Customer will be subject to these Terms of Service.
1.1 Service. Fraud.net provides users with an online business application currently known as Fraud.net's Crowdsourced Fraud Prevention Service, including any new features that augment or enhance such Service made generally available by Fraud.net as part of such Service. Fraud.net shall host the Service and may update the content, functionality, and user interface of the Service from time to time at its sole discretion.
1.2 System License Grant. In consideration of the transaction fees, as provided under the pricing terms displayed on the Fraud.net website or as defined in the applicable Work Order (the " Transaction Fees"), which Customer hereby agrees to be bound by, Fraud.net grants Customer a nonexclusive, nontransferable license to use the Service for Customer internal business purposes. Reselling of the Service is prohibited unless expressly authorized by Fraud.net. Any right not expressly granted are reserved by Fraud.net.
1.3 License Term, Fee and Payment. The initial term of the Service is for twelve (12) months (the "Initial Term") unless otherwise stated on an applicable Work Order. At the expiration of the Initial Term, the Service shall automatically renew for an additional twelve (12) months (each, a "Renewal Term"), at Fraud.net's listed price or as specified under the Work Order, unless either party has provided to the other written notice of non-renewal at least fifteen (15) days prior to the expiration of the then-current term.
1.4 Payment Terms. A minimum payment shall be collected at the commencement of service based on projected volume or as provided for under the Work Order. Actual usage will be adjusted as a debt or credit to the Customer's account at the end of each month. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less. Either party may terminate the Service if the other party fails to cure any material breach of these Terms of Service within fifteen (15) days after written notice of such breach. Upon termination or expiration of the Service, Customer has no rights to continue use of the Service. If the Service is terminated by Customer as a result of Fraud.net's breach, Customer's remaining payment obligation ceases on the termination date.
1.5 Customer shall, in addition to the other amounts payable under the Terms of Service, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by the Terms of Service, excluding only taxes based on Fraud.net net income. Customer agrees to hold Fraud.net harmless from all claims and liability arising from Customer failure to report or pay any such taxes, duties or assessments.
1.6 Customer Must Have Internet Access. In order to use the Service, Customer must have or must obtain access to the World Wide Web. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
1.7 Email and Notices. Customer agrees to provide Fraud.net with Customer e-mail address, to promptly provide Fraud.net with any changes to Customer e-mail address, and to accept emails (or other electronic communications) from Fraud.net at the e-mail address Customer specifies. Except as otherwise provided in these Terms of Service, each party further agrees that the other party may provide any and all notices, statements, and other communications to Customer through e-mail.
1.8 Use of Service; Websites, Passwords, Access, and Notification. Customer shall only use the Service for Customer internal business purposes to improve information discovery on those websites solely owned and solely branded by Customer that are specified from time to time in the applicable order form or Work Order or otherwise in writing to Fraud.net ("Customer Websites"). If the applicable order form or Work Order limits any licenses of Customer to a number of seats, Customer may designate up to the number of users which corresponds to the number of seats purchased by Customer, and Customer may provide and assign unique passwords and user names to each authorized user for each seat purchased. Customer shall not permit any unauthorized users to access the Service, including without limitation by sharing passwords and/or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer (including its employees') passwords and user names. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, customer data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer account. Fraud.net will act as though any communications it receives under Customer passwords, user names, and/or account number will have been sent by Customer. Customer agrees to immediately notify Fraud.net if Customer becomes aware of any loss or theft or unauthorized use of any of Customer passwords, user names, account information and/or account number.
1.9 Customer, Lawful Conduct. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to copyright, privacy electronic communications. Except as permitted by the Terms of Service, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Fraud.net. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, out-source, disclose, or otherwise commercially exploit or make the Service available to any third party, including using the Service to improve the information discovery for any website other than Customer Websites. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will ensure that any use of the Service by Customer's employees (or users) is in accordance with the terms and conditions of the Terms of Service.
1.9 Customer Lawful Conduct. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to copyright, privacy and electronic communications. Except as permitted by the Terms of Service, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Fraud.net. Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any third party, including using the Service to improve the information discovery for any website other than Customer Websites. Customer will not upload, post, reproduce or distribute any information regarding the Service, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Customer will ensure that any use of the Service by Customer's employees (or users) is in accordance with the terms and conditions of the Terms of Service. Customer agrees not to directly or indirectly cause Fraud.net to violate the Fair Credit Reporting Act 15 USC § 1681 et seq., as may be amended, or that might classify Fraud.net as a consumer reporting agency thereunder.
1.10 Transmission of Website Observations and Recommendations. Customer understands that the technical processing and transmission by the Service of the observations related to the Customer Websites ("Observations") and recommendations related to the Customer Websites ("Recommendations") are fundamentally necessary to Customer's use of the Service. Customer expressly consents to Fraud.net reception, storage, processing and retransmission to Customer of the Observations and Recommendations, and Customer acknowledges and understands that such communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Fraud.net. Customer agrees that Fraud.net is not responsible for any Observations or Recommendations which are lost, altered, received or stored without authorization during the transmission of any observation and recommendations whatsoever across networks not owned and/or operated by Fraud.net.
1.11 Fraud.net Support. Fraud.net will use commercially reasonable efforts to promote Customer successful utilization of the Service, including but not limited to providing Customer with User Guides, Knowledge Bases and online help, as well as optional and "for fee" training classes. Fraud.net also offers Customer Support and Professional Services consultation. Customer acknowledges that Fraud.net has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Fraud.net in these areas may substantially undermine Customer's successful utilization of the Service.
1.12 Proprietary Rights. Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
1.13 Trademark Information. Fraud.net, the Fraud.net logo, User Rank and other Fraud.net trademark and service marks, logos and product and service names are marks of Fraud.net (the "Fraud.net Marks"). Customer agrees not to display or use the Fraud.net Marks in any manner without Fraud.net's prior permission.
1.14 Confidential Information. For purposes of the Terms of Service, Confidential Information shall mean information disclosed by one party to the other, either directly or indirectly, whether in writing or otherwise and includes, without limitation, Observations, Recommendations, customer data, customer accounts, customer communication, financial information, information uploaded by Customer to the Service, and any information that is clearly identified in writing at the time of disclosure as confidential or that could have been reasonably understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential ("Confidential Information"). Each party agrees: (a) to protect the Confidential Information and refrain from disclosing such Confidential Information to any third party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations hereunder; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Fraud.net may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Fraud.net in connection with the performance of the Service. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section 1.14 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is requested or required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in connection with these Terms of Service (i.e., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any Nondisclosure Agreement (or similar agreement) executed between the parties. Upon termination, except as otherwise required by law, Fraud.net shall return or destroy any Confidential Information retained in its network and will provide executive level, written certification that the destruction of such information has been completed using industry standard methods for destroying electronic media to a state where it cannot be practicably read or reconstructed. The obligation to protect the Confidential Information will continue beyond the end of this Agreement and/or any Work Order as long as such Confidential Information remains in Fraud.net's possession. Notwithstanding any other provision in this Agreement, Customer acknowledges and agrees that all results or analysis generated by Fraud.net in connection with Fraud.net's use of the Confidential Information, whether alone or in combination with information from other sources ("Analytical Results") are owned and will be retained by Fraud.net. Fraud.net agrees not to distribute or publish any Analytical Results in a manner that renders the Customer readily ascertainable as a source of data used in the Analytical Results. The Customer hereby acknowledges and agrees that Fraud.net owns all right, title and interest in the Analytical Results, including all intellectual property rights therein and that if Customer provides feedback to Fraud.net in use of the Service ("Feedback"), Customer grants Fraud.net a perpetual and irrevocable license to use the Feedback as part of the Analytical Results.
2.1 Warranty of Functionality. Fraud.net warrants to Customer during the Initial Term or Renewal Term of the Service (the "Term") that the Service will be provided in a manner consistent with general industry standards and in accordance with the Fraud.net documentation for the Service (as available at www.Fraud.net.com or successor web sites) (the "Documentation"). Fraud.net does not warrant that the Service will be error-free.
2.2 Service Level Warranty. Fraud.net warrants during the Term of the Service that the Service will meet the service levels outlined in Exhibit A hereto in any month. In the event that Fraud.net fails to meet the service levels outlined in Exhibit A hereto, Customer's sole and exclusive remedy shall be for Fraud.net to provide Customer with a credit as described in 1.15. Any credit is expressly conditioned upon Customer providing Fraud.net written notice of such failure sent to billing@Fraud.net.com by the tenth day of the month following such service level failure.
2.3 Other Warranty. Fraud.net warrants that it will use commercially reasonable efforts to ensure that the Service shall be free of viruses, Trojan horses, worms, spyware, or other malicious code or components.
2.4. Maintenance. Fraud.net conducts maintenance and upgrades during scheduled times. The scheduled time for maintenance and upgrades is Friday and Saturday nights from 10 p.m. to 3 a.m. EST. During these times, Fraud.net will provide commercially reasonable efforts to have the service available for use. Including this time, Fraud.net guarantees 99.5% uptime per annum.
3. DISCLAIMER OF WARRANTIES. EXCEPT AS STATED IN SECTION 2, FRAUD.NET DOES NOT REPRESENT THAT CUSTOMER USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 2 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FRAUD.NET. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 2, THE SERVICE IS PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER PURPOSES.
5.1 Infringement. Fraud.net will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, damages and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") arising out of or in connection with a claim, suit, action, or proceeding (collectively, a "Claim") brought by any third party against Customer based on a claim that the Service, when used in accordance with these Terms of Service, infringes or misappropriates any copyright, patent, trademark, trade secret or other intellectual property right (collectively, "Intellectual Property Rights") of a third party; provided that Customer provides Fraud.net (a) prompt written notice of such Claim; (b) sole control of the defense and settlement of such Claim; and (c) all information and assistance reasonably requested by Fraud.net in connection with such Claim, at Fraud.net's expense. Notwithstanding the foregoing, Fraud.net shall have no obligation under this Section 5.1 with respect to any Claim for infringement that arises out of the use or combination of the Service with any product, service or technology not provided by Fraud.net or contemplated by Fraud.net, if the Service alone would not infringe. If the Service, or any part thereof, becomes, or in Fraud.net's reasonable opinion may become, the subject of an infringement claim, Fraud.net shall have the right, at its option, to (x) procure for Customer the right to continue using the Service, (y) modify or replace the Service with a substantially equivalent non-infringing service, or (z) terminate the Service and refund to Customer a pro-rata portion of the license fees for any remaining unexpired portion of the Term.
5.2 Customer Indemnity. Customer shall indemnify, defend and hold Fraud.net harmless from and against any and all Losses arising out of or in connection with a Claim brought by any third party against Fraud.net which arises out of or results from a claim: (i) alleging that the Service or the use, transmission or processing thereof as contemplated by these Terms of Service (except for a Claim related to the Service for which Fraud.net is obligated to indemnify Customer as provided above) infringes or misappropriates any Intellectual Property Rights or other rights, or has otherwise caused harm to a third party; (ii) arising out of Customer breach of Section 1.9 above; or (iii) arising out of the operation of the Customer Websites; provided that Fraud.net (a) promptly provides Customer notice of the claim, suit, action, or proceeding; (b) gives Customer sole control of the defense and related settlement negotiations; and (c) provides Customer with all reasonably available information and assistance necessary to perform Customer obligations under this paragraph.
5.3 Survival. The indemnification obligations contained in this Section 5 shall survive termination or expiration of the Service.
6.1 Suspension of Account. Fraud.net reserves the right to suspend Customer access to and/or use of the Service in its sole discretion at any time and agrees that Fraud.net shall not be liable to Customer or to any third party for any such suspension of the Service.
6.2 In The Event of Breach. Either party may terminate the Service in the event of a breach of any provision of these Terms of Service by the other party which is not cured within fifteen (15) days of written notice thereof. Upon termination or expiration of the Service, Customer shall have no rights to continue use of the Service. If the Service is terminated as a result of a breach on Fraud.net's part, Fraud.net shall refund the pro rata portion of any fee that may have been paid by Customer for any remaining unexpired portion of the Term.
6.3 Handling of Customer Observations in the Event of Termination. Customer acknowledges and agrees that following termination of Customer account and/or use of the Service, Fraud.net may immediately deactivate Customer account and that following a reasonable period of not less than 90 days shall be able to delete Customer account and related Observations and Recommendations. Customer further agrees that Fraud.net shall not be liable to Customer or to any third party for any termination of Customer access to the Service or deletion of Observations and Recommendations, provided that Fraud.net is in compliance with the terms of this Section 6.3
7. Modification to or Discontinuation of the Service. Fraud.net reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof). In the event that Fraud.net modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Fraud.net, at Customer request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Fraud.net is unable to substantially restore such functionality, Customer shall have the right to terminate the Service and receive a pro-rata refund of the license fees paid for any remaining unexpired portion of the Term. Customer acknowledges that Fraud.net reserves the right to discontinue offering the Service at the conclusion of the Customer's then current Term. Customer agrees that Fraud.net shall not be liable to Customer or to any third party for any modification of the Service as described in this Section 7.
8. Modification to the Terms of Service. Fraud.net reserves the right at any time and from time to time to modify these Terms of Service. However, Fraud.net will be responsible for notifying the Customer of any revision to the Terms of Service. Notification may take the form of reposting the Terms of Service on the Fraud.net website. The Customer will have implicitly to any changes in the Terms of Service after 30 days of reposting.
9. Publicity. The Customer logo and other trademark and service marks and service names are marks of the Customer (the "Customer Marks"). Fraud.net shall have the right to identify Customer by name and logo within Fraud.net's websites and in publicly available marketing materials with the Customer permission.
10 Miscellaneous. The Terms of Service shall inure to benefit and bind the parties hereto, their successors and assigns, but Customer may not assign the Service to a third party without written consent of Fraud.net, except such consent is not required to the successor of all or substantially all of the assignor business or assets. The Terms of Service does not create any joint venture, partnership, agency, or employment relationship between the parties. The Terms of Service and any applicable order form represent the entire agreement of the parties, and supersede all prior agreements or understandings, oral or written, with respect to the subject matter hereof, and may not be modified unless expressly agreed to in writing by both parties. The Terms of Service shall be governed in accordance with the laws of the State of New York, without reference to conflicts of laws principles thereof. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under the Terms of Service. Neither party will be liable for any failure to perform any obligation (other than payment obligations) hereunder, or from any delay in the performance thereof, due to causes beyond its reasonable control.
Exhibit A - Work Order and/or Amended Terms of Service, if applicable.