SimpleFraud Terms of Service
DEVFX® INC. - SIMPLEFRAUD®
TERMS OF SERVICE / SUBSCRIPTION AGREEMENT
This Service Subscription Agreement between DevFX Inc. ("DevFX") and ("Subscriber") as of Subscriber's first is the ("Effective Date"). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use the Service (as defined below). The parties agree as follows:
1.1 "Content" means any information (including, without limitation, contact information), data, audio, visual, and audiovisual works, any score or rating regarding an individual or an actual or prospective transaction, the results of any investigation, or any other content made available through the Service.
1.2 "Eligible Chargeback" means a chargeback which has been provided by the applicable financial institution indicating a fraudulent transaction with one of the reasons code stated in Exhibit A attached hereto, as may be amended from time to time by DevFX, with any such amendment being applicable only to Suspect Transactions for which Fraud Screening Services were provided after the amendment. For clarity, the reasons code are the codes used by the financial institutions. Different merchant banks and other payment processing counterparts may have corresponding reason codes which differ from the reasons code in Exhibit A. For the avoidance of doubt, an Eligible Chargeback shall include such reason codes.
1.3 "End User" means an end user on the Subscriber Storefront.
1.4 "Fraud Screening Services" means the eCommerce fraud screening services that DevFX may provide in connection with the Service to help Subscriber determine whether to accept or decline an eCommerce transaction of an End User, as further described in Section 2.3(b).
1.5 "Scope Limitations" means the limitations and restrictions on Subscriber's use of the Service and the Content specified in this Agreement.
1.6 "Service" means DevFX's cloud-based fraud screening service for risk management of eCommerce transactions currently known as DevFX's "Guaranteed Payments" product, as may be updated or modified from time to time by DevFX at its sole discretion, for use in connection with a third-party platform, including all data processing and analytic services underlying such service, any application for use on or in connection with the Subscriber Storefront or another third-party platform, and all documentation provided by DevFX relating thereto.
1.7 "Subscriber Storefront" means Subscriber's storefront and/or account on a third-party platform.
1.8 "Third-Party Content" means any content or functionality provided by third parties that are not hosted by DevFX, including without limitation any content or functionality provided by a third-party platform
1.9 "User Data" means all data relating to End Users that is made available to DevFX by a third-party platform or by Subscriber.
2. USE OF THE SERVICE
2.1 Account Registration. Subscriber must register for and maintain an account with DevFX to use the Service. Subscriber represents, warrants, and covenants that all required registration information it submits is truthful and accurate, and that it will maintain the accuracy of such information.
2.2 Authorization. As a condition to DevFX's provision of the Service, Subscriber hereby authorizes the Service to operate in connection with each Subscriber Storefront, and to permit the Service to collect User Data, and agrees to authorize the same using functionality on each third-party platform with which the Service is used.
(a) Use of the Service. Subject to the terms and conditions of this Agreement and Subscriber's compliance therewith, including the timely payment of fees, DevFX grants to Subscriber a limited, worldwide, nonexclusive, non-transferable (except as permitted in Section 9.2) right during the term of this Agreement to use the Service and the Content in accordance with the applicable documentation made available by DevFX to request and receive Fraud Screening Services as set forth in this Agreement solely for Subscriber's internal business operations. Subscriber's right to use the Service and Content is subject to the Scope Limitations and contingent upon Subscriber's compliance with the Scope Limitations
(b) Fraud Screening Services. In connection with its use of the Service as expressly authorized in Section 2.3(a), Subscriber may provide to DevFX through the applicable features of the Service details of an "eCommerce Transaction"; of an End User, including User/Transaction Information and other User Data as required by the Service, thereby requesting Fraud Screening Services from DevFX (such End User transaction, a "Suspect Transaction"). DevFX may request from Subscriber additional information regarding the Suspect Transaction as it deems necessary to provide Fraud Screening Services. Following receipt of all necessary information about a Suspect Transaction, DevFX will use commercially reasonable efforts to provide to Subscriber a notice (including in the form of an icon, marker, or other notification on the Service or Subscriber Storefront) indicating whether it advises Subscriber to accept or decline the Suspect Transaction (such notice, the "Advisory Notice") within  days of DevFX's receipt of the initial request for Fraud Screening Services for such Suspect Transaction. Unless otherwise agreed to by Subscriber, Subscriber will be required to pay fees for Fraud Screening Services only if DevFX provides an Advisory Notice to Subscriber recommending that the Subscriber accept the Suspect Transaction as not fraudulent.
(c) Eligible Chargeback. If Subscriber receives an Eligible Chargeback with respect to a Suspect Transaction for which (i) DevFX provided an Advisory Notice advising Subscriber to accept the Suspect Transaction and (ii) Subscriber has timely paid or is required to pay fees that are not yet due for the corresponding Fraud Screening Services, then Subscriber may provide DevFX the necessary details regarding such Eligible Chargeback through the applicable feature on the Service within 15 days from the date that Subscriber received the Eligible Chargeback from the applicable financial institution ("Chargeback Notice"). Following receipt of a Chargeback Notice, if DevFX determines in its reasonable discretion that Subscriber has received a valid Eligible Chargeback despite the affirmative Advisory Notice from DevFX, then DevFX will pay Subscriber an amount equal to the chargeback amount specified in the Eligible Chargeback ("Chargeback Payment"), provided that Subscriber has complied with the terms and conditions of this Agreement and the information about the applicable Suspect Transaction that Subscriber provided to DevFX as required under Section 2.3(b) was accurate and complete as reasonably determined by DevFX. For the avoidance of doubt, for orders that ship, a Chargeback Payment will be payable by DevFX only if Subscriber has demonstrated that it has sent the item purchased by the End User in the Suspect Transaction only to the physical address which was stated in the original order of the End User. The parties hereby acknowledge and agree that Subscriber's receipt of an Eligible Chargeback does not qualify as a breach of this Agreement by DevFX and the Chargeback Payment as set forth in this Section 2.3(c) is DevFX's sole obligation and liability with respect to an Eligible Chargeback received by Subscriber.
2.5 Use Restrictions. Subscriber will not, and will not knowingly permit or authorize third parties to: (a) rent, lease, sell, or sublicense the Service or any Content, in whole or in part, or access thereto, or use the Service or Content to provide any service, information, or content to a third party; (b) other than as expressly authorized in Section 2.3, use the Service or Content for any purpose or otherwise commercially exploit the Service or Content; (c) use the Service or any Content to compete with the Service or DevFX; (d) attempt to recreate, any part of the Service or Content; (e) except, and solely to the extent, as may be permitted expressly by applicable law, circumvent or disable any security, digital rights management, or other technological features or measures of the Service or any Content, or attempt or encourage others to attempt to reverse engineer, disassemble, or decompile the Service or any components thereof, or to gain unauthorized access to the Service, its related systems or networks, or any Content; (f) violate any applicable law or regulation specifically in connection with Subscriber's use of the Service or any Content; (g) remove, alter, or obscure any proprietary notices on the Service or Content; (h) use the Service or any Content in any manner as a factor in establishing an individual's creditworthiness or in determining any consumer';s eligibility for credit, insurance, or employment; (i) use the Service or any Content for marketing or promotional purposes; (j) record, pre-fetch, store, copy, cache, modify, distribute, publicly display, distribute, publish, or otherwise provide access to any Content or compile or collect any Content as part of a database or other work, or use it to update any existing database or other work; (k) infringe a copyright or trade secret of any third party as part of the use of the Service; or (l) interfere with or disrupt the integrity or performance of the Service.
2.6 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent unauthorized use of the Service and Content and immediately notify DevFX of any unauthorized use that comes to Subscriber's attention. Subscriber is solely responsible for (a) maintaining the confidentiality of account password(s) for accessing the Service; (b) restricting access to Subscriber's account on the Service; and (c) all activities that occur under Subscriber's account or password(s). Subscriber will cooperate and assist with any actions taken by DevFX to prevent or terminate unauthorized use of the Service or Content, and will take all steps reasonably necessary to terminate any unauthorized use by anyone who obtained access to the Service directly or indirectly through Subscriber.
2.7 Reservation of Rights; Trademarks. DevFX grants to Subscriber a limited right to use the Service and Content pursuant to Section 2.3 under this Agreement. Subscriber will not have any rights to the Service or Content except as expressly granted in this Agreement. As between the parties, DevFX retains all right, title and interest in and to the Service, Content, and Feedback, including without limitation all intellectual property rights related to each of the foregoing. DevFX reserves to itself all rights to the Service and Content not expressly granted to Subscriber in accordance with this Agreement. All trademarks, logos and service marks ("Trademarks") displayed on the Service are the property of DevFX or of third parties. Subscriber may use Trademarks solely with DevFX's prior written consent for promotional purposes only and in accordance with DevFX's then current trademark usage guidelines, if any, as may be made available by DevFX from time to time.
2.8 Confidentiality. Each party undertakes to the other to treat as confidential and not to use or exploit any information supplied or made available by the other party under this Agreement which is designated as confidential by the disclosing party or which is by its nature clearly confidential, except as necessary for DevFX to perform its obligations, or as otherwise expressly permitted, under this Agreement; provided that this section shall not extend to any information which was rightfully in the possession of the receiving party prior to the commencement of the Services or independently obtained without an obligation of confidentiality or breach thereof or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this section). Neither party shall divulge any confidential information to any person except by DevFX to its employees, sub-contractors or agents who have a need to know the same and who are bound by similar confidentiality obligations. Without limiting the foregoing, the parties hereby acknowledge and agree that the Service, Content, and Feedback is the confidential information of DevFX.
2.9 Feedback. If Subscriber provides any feedback to DevFX concerning the functionality and performance of the Service (including identifying potential errors and improvements) or other aspects of DevFX's business ("Feedback"), Subscriber hereby assigns to DevFX all right, title, and interest in and to the Feedback, and DevFX is free to use, reproduce, disclose, and otherwise exploit the Feedback without payment or restriction, including to improve the Service and create other products and services. DevFX will treat any Feedback as non-confidential and non-proprietary. Subscriber will not submit any Feedback that it considers confidential or proprietary.
2.10 Policies. Subscriber's use of the Service and Content also is subject to all guidelines, terms, and agreements applicable to particular features or Content that may be made available on or in connection with the Service ("Written Policies"). If this Agreement is inconsistent with any Written Policy, the terms in the Policy will control to the extent of the inconsistency.
2.11 Third-Party Content. The Service may contain links to Third-Party Content as a service to those interested in this information. DevFX does not monitor, endorse, or adopt, or have any control over, any Third-Party Content. DevFX undertakes no responsibility to update or review any Third Party Content and can make no guarantee as to its accuracy or completeness. Subscriber accesses and uses Third-Party Content at its own risk.
The Service may contain errors, including errors that may cause the Service or Subscriber's equipment to malfunction or cause a loss of data. DevFX may provide customer support to Subscriber via telephone or email to support@DevFX.com Monday through Friday, 8:30am to 5:00pm PT except during official company holidays. For the avoidance of doubt, DevFX is not obligated to correct the effects of errors (e.g., fix equipment or recover lost data), however, DevFX will make all reasonable efforts to correct any errors that are introduced as a result of services that DevFX has provided to the Subscriber.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms. Subscriber will pay DevFX the fees and any other amounts owing under this Agreement as specified in Exhibit B, plus any applicable sales, use, excise, or other taxes. Unless otherwise specified in Exhibit B, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Notwithstanding the foregoing, if Subscriber saves its credit card or other billing information with DevFX or DevFX's third-party payment processor, Subscriber hereby authorizes DevFX, or its third-party payment processor on its behalf, to charge to and/or withdraw from such account of Subscriber the amounts due 30 days or later after the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.
4.2 Taxes. Other than any income taxes imposed on DevFX, Subscriber will bear all taxes, duties, and other governmental charges (collectively, "taxes") resulting from this
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence upon the Effective Date and continue for the term set forth in Exhibit B (the "Term"), unless terminated earlier in accordance with the terms of this Agreement.
5.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of such breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period.
5.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason other than a termination by Subscriber resulting from any breach or default by DevFX, then Subscriber will pay to DevFX any fees or other amounts that have accrued prior to the effective date of expiration or termination. The parties agree that Sections 1, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 5.3, 6, 7, 8, and 9 will survive a termination of this Agreement. If this Agreement expires or is terminated for any reason, DevFX will promptly reimburse Subscriber any amounts paid hereunder for periods for which Service or part thereof was not provided by DevFX.
6. WARRANTIES AND DISCLAIMER
6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement.
6.2 Warranty Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, THE SERVICE, CONTENT, AND FRAUD SCREENING SERVICES ARE PROVIDED "AS-IS" AND DEVFX MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. DEVFX AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, AND DO NOT WARRANT AGAINST INTERFERENCE WITH, OR UNINTERRUPTED USE OF THE SERVICE OR ANY CONTENT. DEVFX AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT THE SERVICE OR ANY CONTENT WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, THAT THE RESULTS, DATA, INFORMATION, OR CONTENT OBTAINED OR DERIVED THROUGH THE USE OF THE SERVICE WILL BE ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL CONTENT. DEVFX EXPRESSLY DISCLAIMS THE ACCURACY OF ANY ENHANCED ABILITY TO PREVENT OR ADDRESS FRAUDULENT ACTIVITY. DEVFX EXERCISES NO CONTROL OVER AND EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.3(C), DEVFX EXPRESSLY DISCLAIMS ANY LIABILITY AND HAS NO OBLIGATION ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER'S USE OF THE SERVICE OR CONTENT. DEVFX WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE DEVFX'S REASONABLE CONTROL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM THE SERVICE OR ANY CONTENT WILL CREATE ANY WARRANTY REGARDING THE SERVICE OR ANY CONTENT THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.1 Subscriber will defend, indemnify and hold harmless DevFX, its subsidiaries and affiliates, and their respective directors, officers, agents, and employees from and against any actual or threatened third-party claims, actions, demands, proceedings, or investigations and any reasonably related costs, damages, expenses, and liabilities (including reasonable attorneys' fees), arising out of (a) Subscriber's violation of any representation, warranty, or other provision of this Agreement, (b) the User Data, including DevFX's permitted use thereof; or (c) Subscriber's violation of any applicable law, or regulation specifically relating to the use of the Service, including any privacy laws or regulations relating to User Data. Subscriber agrees to not settle any matter without DevFX's prior written consent. DevFX shall promptly notify Subscriber of any claim, action, demand, proceeding, or investigation upon becoming aware of any such claim, action, demand, proceeding, or investigation.
7.2 DevFX will defend or settle, at its sole option, any actual third-party claims, actions, demands, proceedings, or investigations brought against Subscriber and its employees alleging that the Service or Content or Subscriber's use of thereof in accordance with this Agreement infringes any intellectual property rights of the third party and pay any amount finally awarded to the third party by a court or agreed upon by DevFX and the third party that is owed by DevFX. Notwithstanding the foregoing, DevFX shall have no obligation under this Section 7.2 or liability to the extent the alleged infringement arises from (i) the use of the Service or Content in combination with the User Data provided that the claim would not have arisen in the absence of such combination or (ii) use of the Service or Content by Subscriber in a manner for which the Service or Content was neither designed nor contemplated, as evidenced by DevFX's documentation related thereto. Subscriber shall promptly notify DevFX of any claim, action, demand, proceeding, or investigation upon becoming aware of any such claim, action, demand, proceeding, or investigation and DevFX will have sole control over the defense thereof.
8. LIMITATIONS OF LIABILITY
8.1 Disclaimer of Indirect Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS INFORMATION, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR SUBSCRIBER'S ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY CONTENT.
8.2 Limits on Liability. EXCEPT AS RELATING TO SUBSCRIBER'S OBLIGATIONS UNDER, OR BREACH OF, SECTIONS 2.4, 2.5, OR 2.6, AND ANY OBLIGATIONS ARISING UNDER 7.1, THE TOTAL LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE, OR ANY CONTENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL DOLLAR AMOUNT OF THE SUSPECT TRANSACTIONS THAT DEVFX APPROVES PURSUANT TO ADVISORY NOTICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM ARISES.
9.1 Relationship; No Third Party Beneficiary. DevFX will be and act as an independent contractor in the performance of this Agreement. Nothing contained herein will place the parties in the relationship of partners, participants in a joint venture, contractor-subcontractor, or employer-employee and neither party will have any right to obligate or bind the other in any manner nor represent to any third party that it has any right to enter into any binding obligation on the other party's behalf. This Agreement is for the exclusive benefit and convenience of DevFX and Subscriber only and, notwithstanding anything to the contrary herein, no other party has or will have any rights or remedies under this Agreement.
9.2 Assignability. Subscriber may not assign its rights, duties, or obligations under this Agreement without DevFX';s prior written consent. DevFX may freely assign its rights, duties, or obligations under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
9.3 Subcontractors. DevFX may utilize a subcontractor or other third party to perform its duties under this Agreement so long as it remains responsible for all of its obligations under this Agreement.
9.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. Notwithstanding the foregoing, DevFX may also provide notice, including an Advisory Notice, on or through the Service, the Subscriber Storefront, or the email address that has been provided by Subscriber and such notice will be deemed given on the date of transmission thereof.
9.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform any obligations under this Agreement (other than payment obligations) as a result of any cause or condition beyond its reasonable control, so long as it uses commercially reasonable efforts to avoid or remove the causes of non-performance.
9.6 Governing Law and Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules. Each party hereby irrevocably consents to exclusive jurisdiction and venue of the federal, state, and local courts in Delaware, for any action arising out of or in connection with this Agreement. The prevailing party in any lawsuit arising from or relating to this Agreement is entitled to recover its costs, including reasonable attorney fees.
9.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
9.8 Severability. If any part of this Agreement is found illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on use of the Service under this Agreement is found illegal, unenforceable, or invalid, Subscriber's right to use the Service will terminate.
9.9 Entire Agreement. This Agreement, including any and all exhibits and Written Policies, is the final and complete expression of the agreement between these parties regarding Subscriber's use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of DevFX has any authority to bind DevFX with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. DevFX will not be bound by, and specifically objects to, any term or condition different from or in addition to this Agreement proffered by Subscriber in any confirmation, correspondence, or otherwise, unless DevFX specifically agrees to such provision in a writing signed by an authorized agent of DevFX.
YOUR USE OF SIMPLEFRAUD, indicates acceptance of its terms.
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
Term; Fees and Payment Terms
Term: The initial term of the Agreement will be:
Fees and Payment Terms:
DevFX will charge Subscriber 4.5% for all orders accepted by SimpleFraud for guarantees in an on-demand capacity and $0.01 charge for every order/case checked for fraud while using the Advanced ScorePlus platform, and charge Subscriber 1.5% for all orders accepted by SimpleFraud for guarantee under the Guaranteed CompletePlus platform. Actual charges and fees may vary from plan to plan depending on the platform you are on.