IMPORTANT: BY ACCESSING AND/OR USING THE WEBSITE (DEFINED BELOW) YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN PLEASE DO NOT ACCESS OR USE THE WEBSITE.
Acceptance of Terms
Acrocharge may unilaterally change or add to the terms of this Agreement at any time. In the event of a material change, Acrocharge shall notify you via email or by means of a prominent notice on the Acrocharge website available at: https://acrocharge.com/ or on the Solution, which you should check periodically. By continuing to use the Solution following such modifications, you agree to be bound by such modifications.
In addition to terms defined elsewhere in this Agreement, as used herein, the following terms shall have the following meanings:
1.1. “Chargeback” means the reversal of a credit card payment by a Payment Processor, debiting the Customer with respect to a transaction with a Customer End-User.
1.2. “Customer End-User” means a third-party purchaser of merchandise or subscriber of services making a purchase over the phone or using the Customer’s websites and/or applications for the purchase of merchandise from, or the provision of services by, the Customer.
1.3. “Disclaimed Transaction” means a transaction of a Full Service Customer with respect to which there was a Chargeback or a Chargeback request was submitted.
1.5. “End-User” means a customer of the Customer.
1.6. “End-User Data” means all relevant information in the possession or control of the Customer identifying the Customer End-User that is the subject of a Disclaimed Transaction, including: (i) any chargeback details provided by the Payment Processor, which includes, among other items, ARN number (card scheme chargeback ID), chargeback amount, transaction amount, transaction date, card scheme name (Visa, MasterCard, etc.), issuing bank name, MID number, MCC code, descriptor and additional security measures used like CVV, AVS, and 3DS), (ii) any email correspondence with the Customer End- User (including any automatic email sent to the Customer End-User by the Client’s systems (for example – email confirming the details of the transaction and any sales receipts), (iii) any form of proof of delivery that the Customer may have on each Disclaimed Transaction (by way of example – screenshots of the Customer End-User(s)’s account online, signed delivery receipt, or any other form of electronic proof that the product or service underlying the Disclaimed Transaction was received by the Customer End-User, (iv) Customer End-User information that may be available, such as phone numbers, email addresses, IP addresses, ID cards, proof of address (utility bill), or selfies (e.g. picture of the cardholder holding their credit card or other identifiers), and (v)available support tickets between the Customer End-User and the Customer’s support teams.
1.7. “Full Service Customer” means a Customer under paid subscription to the Service, for whom Acrocharge manages, processes and submits all chargeback responses.
1.8. “Payment Processor” means each third party payment processor, bank or financial institution that processes a transaction between the Customer and a Customer End User.
1.9. “Platform User” means a Customer under a free subscription to use the Solution for preparation, submission and management of Chargeback responses independently by such Customer, to whom Acrocharge does not provide the Service. A Platform User may become a Full Service Customer buy purchasing a subscription from Acrocharge.
1.10. “Services” means Chargeback mitigation services undertaken by the Company for Full Service Customers.
1.11. “Solution” means Acrocharge’s online solution for submission of Chargeback responses.
2. RIGHT TO USE THE SOLUTION
Subject to the terms and conditions of this Agreement, Acrocharge grants Customer, and Customer accepts a non-exclusive, non-transferable, non-sublicensable, limited right to use the Solution, for its intended use internally during the term set forth in the Order.
3. ACROCHARGE SERVICES
3.1. Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Full Service Customers with the Services using the Solution and Company’s websites, applications, professional services, and such other services and tools offered by the Company from time to time.
3.2. The Company agrees to use and retain such End User Data collected in accordance with applicable laws, including without limitation the European General Data Protection Regulation (“GDPR”) applicable to personal data “processed” (as such term is defined in the GDPR) regarding data subjects in the European Union, and in compliance with PCI DSS. The Company will safeguard End User Data, including adhering with all applicable and then-current legal obligations and security measures required by applicable law. The Company warrants that it has taken such precautions required by law or PCI DSS or as are commercially reasonable to ensure that End User Data is protected from unauthorized disclosure, processing, or use, and that its electronic systems are secure from breach, intrusion or compromise by any unauthorized third parties. The Company agrees to return or destroy all physical forms, copies, or derivations of the End User Data to Customer within thirty (30) days of written request or within ninety (90) days of the termination of this Agreement, including any backup copies on tapes, disks, optical disks, or any other media, except for copies the Company is required to retain by law or in connection with any legitimate interest of the Company, such as conduction of any legal inquiry or proceedings.
3.3. Following receipt of all required Disclaimed Translation Information, the Company may, at its sole discretion, decide whether it believes retrieval or release of any funds withheld by any Payment Processor to the Full Service Customer is reasonably feasible, and if so, initiate a procedure to retrieve or release such funds (herein: “Transaction Inquiry”). In the event the Company has resolved to proceed with any Transaction Inquiry, the Full Service Customer agrees to pay to the Payment Processor any fees imposed by or payable to the relevant Payments Processor in connection with such Transaction Inquiry, including, but not limited to, in connection with the posting of such Transaction Inquiry in any Customer’s account with the Payment Processor. In the event Company decides not to pursue such Disclaimed Transaction it shall inform the Full Service Customer in writing. Without derogating from the foregoing, Platform Users shall bear all costs and fees in connection with their use of the Solution or their transaction inquiries. It is hereby clarified that the Company shall not prepare or submit Transaction Inquiries on behalf of Platform Users.
3.4. Company shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, “Company Equipment”). Company shall also be responsible for maintaining the security of the Company Equipment and the security of any Disclaimed Transaction Information in its possession, when provided by the Customer.
3.5. The Company hereby represents, warrants and covenants to the Customer that:
3.5.1. it possesses the skills and expertise and resources required for it to perform the Services in a professional manner, consistent with industry standards and that it shall so perform such obligations;
3.5.2. the Solution will not, infringe, violate or in any manner contravene, breach or constitute an unauthorized use or misappropriation of or otherwise infringe any patent, copyright, trademark, license or other property or proprietary right of any third party or constitute the unauthorized use or misappropriation of a trade secret;
3.5.3. none of the Services or any part of this Agreement is or will be inconsistent with any obligation the Companymay have to any other person or entity;
3.5.4. neither the Company nor any of its employees or consultantshas ever been convicted of a crime involving theft, fraud, dishonesty or similar acts and, further, that each of the Company’s employeeshas the education, training and experience to perform the Services;
3.5.5. the Company is not now and never has been the subject of a lawsuit involving negligence, misconduct, or breach of contract brought by a third party to whom the Company, its officers and directors was engaged to provide services similar to the Services;
3.5.6. in the performance of the Services, the Company will comply withits published policies then in effect and all applicable laws and regulations.
4. CUSTOMER OBLIGATIONS
4.1. The Full Service Customer shall direct any and all Disclaimed Transactions to be handled by the Company and shall not independently submit Transaction Inquiries without Company’s approval. The Full Service Customer will inform the Company of any Disclaimed Transaction, and provide the Company such Disclaimed Transaction Information and the corresponding End User Data.
4.2. The Full Service Customer will provide the Company with assistance, as the Company shall reasonably request from time to time, and will identify the Company to the Payment Processor and/or any other relevant party as its authorized representative that is allowed to make inquiries and request and provide information with respect to any Disclaimed Transaction, in the name and on behalf of the Full Service Customer. The prior sentence notwithstanding, the Company shall not bind the Full Service Customer or otherwise make any representation or warranty on the Full Service Customer’s behalf, without first obtaining the Full Service Customer’s prior written consent or unless it is relaying on the Full Service Customer’s explicit written provided information.
4.3. In order for the Company to provide the Services, the Full Service Customer shall use reasonable efforts to furnish and/or make available to the Company any Disclaimed Transaction Information in its possession or the possession of its agents and all End User Data available or obtainable by the Customer with minimal effort, which relates to the Disclaimed Transaction.
4.4. The Customer hereby grants the Company a license to use and exploit the Disclaimed Transaction Information solely for the purpose of providing the Services and the due operation of the Solution during the Service Term; and
4.5. The Customer represents and warrants that it used all reasonable effort to ensure the End User Data is accurate, and that the provision of, or access by the Company to the End-User Data directly or through a third-party will not violate any applicable agreements between the Customer and such End User.
4.6. The Customer shall provide the Disclaimed Transaction Information on a per case basis, and at Customer sole discretion, either (i) via integration between the Customer’s services and systems (including, if applicable, the Customer’s CRM) and the Solution, using the Company’s designated API (if and when available), by providing the Company with the Customer’s credentials used to access such data from a third-party service provider of the Customer, or (ii) solely for Full Service Customers, manually in hard copy or PDF. In any event Customer is responsible for obtaining (on its own responsibility and account) any third party permission, as required, to provide such information or data.
5. RESTRICTIONS AND RESPONSIBILITIES
5.1. The Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or the Solution or any documentation or data related to the Services; (ii) modify, translate, or create derivative works based on the Services or the Solution (except to the extent expressly and in writing permitted by Company or authorized within the Solution); (ii) use the Services or the Solution for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or (iv) remove any proprietary notices or labels.
5.2. Customer will not: (i) interfere with or disrupt the integrity or performance of the Solution or third-party data contained therein; (ii) attempt to gain unauthorized access to the Solution or its related systems or networks; (iii) use the Solution or Services in order to build a competitive product or service or to benchmark with any products or services offered by Company.
5.3. Further, Customer may not remove or export from Israel or the United States or allow the export or re-export of the Services, Solution or anything related thereto, or any direct or indirect product thereof in violation of any restrictions, laws or regulations of the State of Israel and/or the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States, Israeli or other foreign agency or authority.
5.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Solution and Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Customer Equipment”). Customer shall also be responsible for maintaining the security of the Customer Equipment, its Services’ account, passwords and files and the security of any Disclaimed Transaction Information at the highest generally available industry standard, when provided to the Company.
6.CONFIDENTIALITY; PROPRIETARY RIGHTS
6.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services, including any Disclaimed Transaction Information, but excluding any Derivative Data (as such term is defined under Section 6.4 below), which may be freely used by the Company for its own purposes. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public through no fault of the Receiving Party, or (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
6.2. The Receiving Party may disclose Proprietary Information of the Disclosing Party to the extent compelled by law to do so, provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (if and to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Proprietary Information.
6.3. Customer shall own all right, title and interest in and to the End User Data. Company shall own and retain all right, title and interest in and to: (i) the Services and Software, all improvements, enhancements or modifications thereto, (ii) all Derivative Data, and (iii) all intellectual property rights related to any of the foregoing.
6.4. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and, for removal of doubt, the Company will be free (during and after the term hereof) (herein “Derivative Data”) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and/or (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
7. PAYMENT OF FEES
7.1. Customer will pay Company the then applicable Service Fees described in the Service Order for the Services in accordance with the terms therein (the “Fees”). Currently the use of the Solution by Platform Users is provided at no charge, however, Company reserves the right to charge for such use in the future upon thirty (30) days’ written notice. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email).
7.2. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Customer’s account manager.
7.3. Unpaid amounts are subject to a finance charge of a half percent (0.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
7.4. Termination of the Agreement shall not terminate the Customer’s obligation to pay the Company any due but unpaid Fees.
8. TERM AND TERMINATION
8.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Service Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term.
8.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. All Sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8.3. Company may, at any time in its sole discretion, suspend or terminate accounts of Platform Users upon notice.
9. WARRANTY AND DISCLAIMER
Company shall use reasonable commercial efforts and exert all reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services and to win any Disclaimed Transaction and mitigate Chargebacks. The Solution may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE SOLUTION. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND THE SOLUTION ARE PROVIDED “AS IS” AND ON AN “AS-AVAILABLE” BASIS, AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WITHOUT DEROGATING FROM THE FOREGOING, IN NO EVENT SHALL THE COMPANY BE LIABLE TOWARDS THE CUSTOMER FOR ANY LIABILITY (INCLUDING ANY MONETARY LIABILITY) IMPOSED ON THE CUSTOMER BY ANY PAYMENT PROCESSOR IN CONNECTION WITH ANY TRANSACTION INQUIRY.
10.1. Notwithstanding anything to the contrary in the Agreement or any agreement between the Parties, Company shall indemnify, defend and hold harmless Full Service Customer and its affiliates against all losses, fines, penalties and sanctions, finally awarded in judgment or settlement and arising from: (i) any claim of any kind by an End User, third party or supervisory authority solely to the extent arising from use of the End-User Data and/or of Derivative Data other than as permitted herein, or (ii) violation of applicable law and/or an End-User Data breach occurring in Company’s, Company’s Affiliates’ and/or their subprocessors’ systems.
10.2. Notwithstanding anything to the contrary in the Agreement or any agreement between the parties, Customer shall indemnify and hold the Company and its affiliates harmless from any claim or damage, cost or expense incurred by or in connection with any inaccuracy of any End User Data or any breach of the Customer’s representations and warranties regarding such End User Data set forth in this Agreement. Without derogating from the foregoing, Platform Users shall indemnify and hold Company and its affiliates harmless from any claim or damage, cost or expense in connection with their use of the Solution and submission of transaction inquiries.
10.3. In the event of any indemnification claim, the party seeking indemnification shall promptly notify the other party (the “Indemnifying Party“), allow the Indemnifying Party control of the defense of the claim, and provide at the Indemnifying Party’s expense any assistance reasonably requested by the Indemnifying Party with respect to the defense of such claim. The party seeking indemnification (the “Indemnitee“) will have the right to participate, at its own expense, in the defense of any such claim with counsel of its choosing. No settlement or compromise that imposes any liability or obligation on any Indemnitee will be made without the Indemnitee’s prior written consent (not to be unreasonably withheld). If the Indemnifying Party fails to defend an Indemnitee as provided in this Section 10.3 after reasonable notice of an indemnified claim, the Indemnifying Party will be bound to indemnify and reimburse any Indemnitee for any losses incurred by the Indemnitee, in its sole discretion, to defend, settle or compromise such claim.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NONE OF COMPANY, CUSTOMER, OR THEIR RESPECTIVE SUPPLIERS (INCLUDING, BUT NOT LIMITED TO, ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA (INCLUDING, FOR REMOVAL OF DOUBT, ANY END USER DATA) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (III) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding anything to the contrary in the Agreement or any agreement between the Parties, Company’s and Company’s affiliates’ liability related to End-User Data, or for any breach of, or related to, this Agreement, violation of applicable law and/or End-User Data breach occurring in Company’s, Company’s affiliates’ and/or their subprocessors’ systems shall be unlimited.
12.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.2. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
12.3. Company shall comply with all applicable laws regarding anti-bribery, anti-corruption, money laundering, or terrorist financing (including without limitation the United States Foreign Corrupt Practices Act, 15 U.S.C. §78dd-1 et seq. (“FCPA”) and United Kingdom Bribery Act of 2010 (“UKBA”)), and will comply with reasonable audit requests made by Customer in writing to verify such compliance.
12.4. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
12.5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
12.6. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
12.7. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.8. This Agreement shall be governed by the laws of the State of Israel without regard to its conflict of laws provisions. The competent courts located in Tel-Aviv, Israel, shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement. This Agreement shall be binding upon the successors and assigns of the respective parties.
If you have any further questions or require further clarification, please contact us by sending an e-mail to: [email protected]
Last updated: July 26, 2021