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Terms & Conditions

 

 

 

 

 

SERVICE TERMS OF USE

Last updated on  07/08/2020

 

This SOFTWARE AS A SERVICE TERMS OF USE (the “Terms”) together with Fugu’s Privacy Policy and any other terms and policies referred to herein govern the use of the Services (as defined below) provided by Fugu Risk Ltd., a limited liability company organized under the laws of Israel (“We” or “Fugu”) to you, the user of the Services (“You” or the “Client”). Each of Fugu and You are individually referred to herein as a “Party” and collectively as the “Parties”.

 

1.        ACCEPTANCE

1.1.       Acceptance. These Terms apply to your use of the Service (as that term is defined below). By clicking “I agree” You agree to these Terms and where your access and use is on behalf of another person (e.g. a company), You confirm that you are authorized to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

If You do not agree to these Terms, You are not authorized to access and use the Service, and You must immediately stop doing so.

1.2.       Changes. We may change these Terms at any time. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Terms.

 

2.        RIGHT TO USE THE SERVICES

2.1.      The Services. Fugu provides online merchants access to a payment risk monitoring platform that monitors, records and analyzes customer behavior after check-out in order to assess the risk of fraud and the merchants ability to confront it while minimizing cart abandonment, false declines and manual labor (the “Services”)

2.2.     Right to use the Services. Subject to these Terms We are granting you a limited, nonexclusive, revocable right for You to use one of the following services, solely for your own personal (the “Services”):

          “Free Tier Services” means the right to use the Services by a single user with an automatic recording and analysis of up to 1000 evidences / payment representations per month.

          “Pro Tier Services” means the right to use the Services by multiple Authorized Users (as defined below), unlimited recording and analysis of evidences / payment representations per month and full branding capabilities.

The Pro Tier Services shall be provided subject to the timely payment of the Fees (as defined below).

2.3.     Authorized Users in Pro Tier Services Only those users authorized by Client may use the Service (each, an “Authorized User”). Any violation of the terms and/or conditions of these Terms by an Authorized User shall be deemed to be a violation by Client of such Terms. Client is solely responsible for the security, and use of all Authorized Users’ user names, passwords and other security devices used in connection with the Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized persons. Client shall immediately notify Fugu in writing if there is any reason to believe that an Authorized User’s user name, password, or any other security device has or is likely to become known to anyone not authorized to use it, or is being or is likely to be used in an unauthorized way. Fugu reserves the right to require Client to change any or all its Authorized Users’ user names, passwords or other security devices used by Client in connection with the Services, and Client shall promptly comply with any such requirement.

2.4.     Use Restrictions. Except for the rights granted herein, no other rights in or to any Services, express or implied, are granted to Client. Without limiting the foregoing, Client may not: (i) transfer any of its rights to use the Services; (ii) sell, rent, lease or share the Services or the results thereof; (iii) permit any person who is not an Authorized User to use or access the Services; (iv) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Fugu’s online software application provided as part of the Services; (v) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; (vi) access all or any part of the Services or information included therein (e.g., Fugu’s recommendation to approve or decline a transaction) in order to build, improve upon, develop a product or service which competes with the Services; (vii) use the Services other than for the purpose described in these Terms; (viii) load or penetration test the Services in any way that is, or could reasonably be expected to be, detrimental to Fugu’s ability to provide services to any other client; (ix) send Fugu any data regulated under PCI; (x) use the Services or provide data to Fugu in a manner that violates any applicable law, ordinance, regulation or administrative order; or (xi) permit any other person to do any of the foregoing.

 

3.        FUGU’S  RESPONSIBILITIES

3.1.     Support. If You purchased the Pro Tier services Fugu will provide You with reasonable technical support in accordance with Fugu’s standard practices. Fugu does not provide support services for Free Tier Services.

3.2.     Security Program. Fugu shall establish and maintain a data privacy and information security program that includes physical, technical, administrative, and organizational safeguards, that is designed to: (i) ensure the security and confidentiality of your Confidential Information; (ii) protect against any anticipated threats or hazards to the security or integrity of your Confidential Information; and (iii) protect against unauthorized disclosure, access to, or use of your Confidential Information, in each case, in accordance with the security schedule attached hereto

 

4.        CLIENT’S RESPONSIBILITIES

4.1.     Client IT Infrastructure. You are solely responsible for obtaining and maintaining network connections and telecommunications links from its systems to Fugu and all problems, conditions, delays, delivery failures as well as all other loss or damage arising from or relating to Client’s network connections or telecommunications links or caused by the internet. Notwithstanding anything herein to the contrary, Fugu is not responsible for technical issues due to Client’s failure to comply with Fugu’s instructions; or modification or alteration of the Services by any anyone other than Fugu or Fugu’s duly authorized contractors or agents.

4.2.     Audit. Fugu may audit Client’s use of the Services upon reasonable advance notice, during business hours, not more than once per calendar year, provided that such limitations shall not apply if Fugu has reasonable cause to believe that Client is using or permitting the Services to be used in an unauthorized manner.

 

5.        CLIENT‘S DATA

5.1.        Provision of Client Data. Client will provide Fugu with all the data recommended by Fugu in order for Fugu to provide the Services (“Client Data”).

5.2.        License to Client Dat You grant Fugu and its affiliates the worldwide, non-exclusive, royalty-free, perpetual, fully-paid-up, and irrevocable, right to: (i) use data received from or made available by You to provide the Services to (a) Client and (b) Fugu’s and its affiliates other clients; provided that Fugu and its affiliates shall only use the Client Data to provide the Services and shall not disclose Client Data to such other clients; (ii) incorporate the Client Data into the Services; (iii) and use the Client Data in accordance with Fugu’s Privacy Policy. For the avoidance of doubt, Fugu uses a combination of client data from all of its clients as well as third-party sources to provide its Services; without such Client Data, Fugu is unable to provide the Services. Fugu may provide Client Data to third parties in order for Fugu to provide the Services and Client consents to such transfer of Client Data.

5.3.        Client Authorization. You shall obtain all consents and make all disclosures and obtain all the consents needed pursuant to Directive 95/46/EC (General Data Protection Regulation) (“GDPR”), the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. (the “CCPA”), and any other applicable law and /or regulation (as may be amended from time to time) (collectively, “Privacy Laws”) in order for Fugu to use the Client Data as permitted by these Terms including for the use of Fugu’s cookies in the end client’s systems. Notwithstanding anything herein to the contrary, Fugu shall be permitted to retain and use Client Data associated with the provision of the Services and after the expiration or termination of your engagement with Fugu for purposes of acting as a Service Provider (as defined in the CCPA) or as a Processor (as defined in the GDPR) for Client. Client hereby instructs Fugu to use and retain the Client Data internally for the benefit of all of Fugu’s clients for detecting fraud, optimizing e-commerce solutions and similar performance enhancing purposes.

5.4.         Client Responsibility.  You are solely responsible for all aspects of Client Data, including its sourcing, inputting, accuracy, quality, integrity and management. You shall be responsible for (i) obtaining consent from Client’s end customers as required under the Privacy Laws and any other applicable law including consents for the collection of data for the provision of the Services through the use of cookies and/or other tracking technologies (ii) the provision of notices to Client’s end customers as required under the Privacy Laws and any other applicable law, (iii) obtaining consent to use automated decision making as required under any other applicable law (iv) providing Client’s end customers with the ability to exercise their rights as required pursuant to Privacy Laws and any other applicable law, and (v) any requirements or limitations regarding the processing of data of minors, in each case, to the extent required under any applicable law.

5.5.         Data Portability. Following Your written request to be delivered to Fugu no later than thirty (30) days after termination of these Terms and your right to access and use the Service, Fugu shall make available to You for download one or more electronic files of Client Data stored by Fugu. After such thirty (30) day period, Fugu shall have no obligation to maintain or provide any Client Data.

5.6.         Client Data Breach. Client will notify Fugu in writing no later than seventy-two hours of discovering that Client Data has been accessed or is believed to have been accessed by an unauthorized party; or, (ii) that any end-customer login or account credentials have been or are believed to have been compromised.

5.7.         Indemnification. Client shall defend and indemnify Fugu against claims, actions, proceedings, losses, damages, expenses and costs (including reasonable attorney’s fees) arising out of or in in connection with third party claims alleging (i) Client’s use of the Services violates applicable law, including, without limitation, Privacy Laws (e.g. Client’s failure to obtain any required consents for data processing and to use automated decision making), and (ii) Client Data infringes or misappropriates a copyright, patent, trademark, trade secret, privacy or proprietary right  or violates any right, law, or regulation applicable to such Client Data.

 

6.        FEES AND PAYMENT

6.1.       Fees. In consideration to the Pro Tier Services (as defined above), the Client will pay Fugu the applicable fees according to Fugu’s price list (as shall be updated from time to time) (the “Fees”) pursuant to an agreed and binding purchase order (the “Purchase Order”). The Free Tier Services (as defined above) will be provided to the Client, subject to these Terms, free of charge.

6.2.      Changes in Fees. Notwithstanding the foregoing, We may decide to start charging fees for the Free Tier Services and/or to increase the Fees for the Pro Tier Services by giving You at least 30 days’ prior notice (the “Increased Fees”). If You do not wish to pay the Increased Fees, You may terminate these Terms and your right to access and use the Services by giving Fugu a prior written notice of at least than 15 days’. If you do not terminate these Terms and your right to access and use the Services in accordance with this clause, you are deemed to have accepted the Increased Fees.

6.3.      Payment Terms; Non-refundable Fees. You must pay the Fees in accordance with the payment terms set out on the Purchase Order without any set off or deduction. Except as otherwise specified herein or in a Purchase Order, Fees are non-cancellable and non-refundable.

6.4.      Late Payment; Disputes. Unpaid amounts are subject to a finance charge of 1.5% per month or the maximum percentage permitted by law, whichever is lower, in addition to all reasonable costs of collection, including reasonable attorney’s fees. Any good faith objection to an invoice shall be provided in writing to Fugu within thirty (30) days of receipt of the invoice, otherwise Client waives any objections and such invoice will be deemed final, not subject to dispute, and accepted by Client.

6.5.      Taxes. All fees are exclusive of taxes or duties. If Fugu is required to collect or pay any federal, state, or local tax under these Terms, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Fugu’s net income, then such taxes and/or duties shall be billed to and paid by Client upon receipt of invoice.

6.6.      Payment Failure; Service Suspension. Fugu may suspend the Service in whole or part if Client fails to make any overdue payment within five (5) days of written demand by Fugu.

 

7.        TERM AND TERMINATION

7.1.       The Term. these Terms and your right to access and use the Services starts on date that You set up an account and accept these terms in accordance to the provisions of Section ‎1 above and continues until the earlier of (i) the expiration date set forth in the Purchase Order; or (ii) termination by either Party as set out herein (the “Term”).

7.2.      Termination. Fugu retains the right to terminate these Terms and your right to access and use the Services without notice at its complete discretion for any reason, including for violation of any of these Terms. Unless stated otherwise in the Purchase Order You may terminate these Terms and your right to access and use the Services according to the provisions of Section ‎2 above.

7.3.      Results of Termination. No compensation is payable by Fugu to You as a result of termination of these Terms for whatever reason. Termination of these Terms does not affect either Party’s rights or obligations that accrued before that termination. Clauses which, by their nature, are intended to survive termination of these Terms, including, without limitation, Sections ‎2 to ‎5.7, ‎8 and‎ 9, continue in force.

8.        LIMITED WARRANTY; LIMITATION OF LIABILITY

8.1.       Limited Warranty. To the maximum extent permitted by law, Fugu’s warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded. Fugu make no representation concerning the quality of the Services and do not promise that the Services will: (i) meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility You may have; or (ii) be secure, free of viruses or other harmful code, uninterrupted or error free.

8.2.      Exclusion of Consequential and Related Damages. In no event will either Party or its affiliates have any liability for any lost profits, revenues, goodwill or indirect, special, incidental, consequential, cover, business interruption or punitive damages, any loss of data, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose.

8.3.      Limitation on liability. in no event shall the aggregate liability of Fugu, together with all of its affiliates, arising out of or related to these Terms exceed the total amount paid by Client for the Services giving rise to the liability in the six (6) months preceding the first incident out of which the liability arose.

8.4.      Claims. Any claim or action by either Party related to these Terms, including, but not limited to, the Services, must be commenced within two (2) years after the date on which the act, event, condition, or omission giving rise to such claim or action occurred or could have reasonably been discovered. Any action not brought within that two (2) year period shall be barred, without regard to any longer limitations period set forth in any applicable law or statute.

9.        PROPRIETARY RIGHTS AND LICENSES

9.1.       Ownership. You acknowledge and agree that Fugu and/or its affiliates and/or licensors own all Intellectual Property Rights in the Services and associated documentation. Except as expressly stated herein, these Terms does not grant Client any rights to, or in any Intellectual Property Rights or any other rights or licenses in respect of the Services or the associated documentation. Client acknowledges that the Services, associated documentation and the inventions, know-how and methodology embodied therein are proprietary to, and are the valuable trade secrets of Fugu and its affiliates and licensors, as applicable, and that the Services constitutes confidential information of Fugu and/or its affiliates. For purposes of these terms, “Intellectual Property Rights” shall mean all rights throughout the world in any and all of the following: (i) patents, patent applications, patent disclosures and inventions (whether patentable or not); (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (iii) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (iv) trade secrets, know-how and other proprietary information of a like kind; (v) waivable or assignable rights of publicity, waivable or assignable moral rights; and (vi) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.

9.2.      License to Use Feedback. You grant Fugu and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Fugu’s and its affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its Authorized Users relating to the Services.

9.3.      Use of Logo. Fugu may use Client’s name and logo on Fugu’s website and promotional and marketing materials.

 

10.    GENERAL PROVISIONS

10.1.      Entire Agreement. These Terms, jointly with any Purchase Order (if executed), 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 these Terms.  .

10.2.      No Joint Venture or Partnership. The Parties are independent contractors. These Terms does not create a partnership, joint venture, franchise, agency, fiduciary, or employment relationship between the Parties.

10.3.      Waiver. No failure or delay by either Party in exercising any right under these Terms will constitute a waiver of that right.

10.4.      Governing Law and Venue. These Terms shall be governed by and construed in accordance with the laws of the State of Israel. The Parties hereby irrevocably consent and submit to the exclusive jurisdiction and venue of the courts in Tel Aviv.

10.5.      Notices. Any notice given pursuant to these Terms shall be in writing. If We need to contact You, We may do so by mail or by email to the addresses You provided to us. You may give notice to us by addressing them to: info@fugu-it.com or to Fugu Risk Ltd, 13th Nehama St., Tel Aviv, Israel. Notice sent by email shall be deemed effective when the receipt is electronically confirmed. Any such notice shall be deemed to have been given on (i) the day such notice or communication is personally delivered, (ii) three (3) days after such notice or communication is sent by overnight express Notice sent by email shall be deemed effective when the receipt is electronically confirmed.

10.6.     Force Majeure. If either Party is unable to perform any obligation (excluding any payment obligation) under these Terms because of any matter beyond that Party’s reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, pandemic, civil disorder, industrial disputes (whether or not involving employees of either Party), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.

10.7.     Assignment. Client may not assign or otherwise transfer any duty or assign or otherwise transfer any right hereunder, including by operation of law, without the prior written consent of Fugu. Any purported attempted assignment, transfer or delegation shall be null and void. Fugu may assign or otherwise transfer any duty or assign or otherwise transfer any right hereunder by providing a notice to the Client.

10.8.    Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

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