Terms and Conditions for Chargebacks of Up to $5,000

1Introduction; Scope

These Terms and Conditions establish the contractual framework under which Cactil, LLC d/b/a MyChargeBack (“Cactil,” “we” or “our”) will, pursuant to signed Statements of Work, provide fund recovery services (as further described in Cactil’s Description of Services) to clients such as yourself (“you”) who wish to submit disputes (each, a “Dispute”) regarding transfers of funds that they have transmitted to one or more merchants. These Terms and Conditions, together with your Statement of Work and Cactil’s Description of Services, collectively form the Fund Recovery Services Agreement (the “Fund Recovery Services Agreement “ or the “Agreement”) governing the relationship between you and Cactil (each a “Party” and collectively, the “Parties”).  These Terms and Conditions are effective from the date you receive them from us, unless you have previously received any other terms and conditions from us, in which case these Terms and Conditions will replace the earlier terms on the date that is thirty (30) calendar days after the date that you receive either these Terms and Conditions and/or a URL or weblink permitting access to them. Capitalized terms not defined in these Terms and Conditions have the meanings given to them on your Statement of Work.

2.  Scope of Services

Cactil is committed to working both zealously and professionally in its provision of all of the recovery services (the “Services” or “Fund Recovery Services”) specifically identified on your Statement(s) of Work. The Parties acknowledge that Cactil is not a law firm or private investigation firm, but rather acts as agent for their clients who are desirous of receiving fund recovery services, including preparation of case files.

3.  Response Time; Working Hours

Cactil will make reasonable efforts to respond to your inquiries within two (2) working days of receipt. Recovery Services, subject to variation from time to time, are provided from Monday to Thursday from 8 AM to 5:30 PM GMT and Friday from 8 AM to 1 PM GMT except for holidays. Holidays are workdays in which the Company is officially closed. During the term of the Agreement, Cactil will use commercially reasonable efforts to notify you in writing at least 72 hours before the beginning of a holiday.

4.  Access to Information and Communication

In relation to all of our work for you, it is your responsibility to provide complete, accurate, non-misleading and timely information required for the execution of our Services. It is your responsibility to notify Cactil if information that you have provided has changed or if you subsequently discover that the information that you have provided is incorrect, inaccurate, or incomplete. All your questions/queries in respect of our Services must be submitted to Cactil via email to either info@mychargeback.com or such other email address as we may communicate from time to time for the purposes of better serving your needs and making our Services more efficient and effective.

5.  Term; Termination

The Agreement will become effective as of the date (the “Effective Date”) that both Parties have signed a Statement of Work incorporating these Terms and Conditions, and shall expire upon the later of: (a) the date that is three (3) months after the Effective Date or (b) the date that the last Bank or Financial Institution evaluating a Dispute with respect to which we did, or were obligated to, provide Fund Recovery Services makes a final decision on the outcome of the Dispute; provided, however, that the Agreement shall not continue for a duration of longer than six (6) months unless Cactil provides notice of the length of the additional term (not to exceed the six (6) months) by which it elects, in its absolute discretion, to extend the duration of the Agreement. In addition, Cactil reserves the right to interrupt and/or cease to provide the Fund Recovery Services, and shall not be liable to refund any portion of the Fees (as defined below) to which it is entitled under the Agreement in the event that:

(a) You fail to cure your breach of any material term of the Agreement within seven (7) days after receiving notice of such breach;

(b) You fail to provide any of the documentation requested of you within seven (7) business days;

(c) We are unable to reach you via your contact details on file for ten (10) consecutive business days;

(d) You receive payment pursuant to a settlement agreement or final judgment of a court or tribunal charged with ruling upon or arbitrating all or a portion of your Dispute(s).

(e) You fail to submit a card chargeback dispute document (if any) to your bank within two (2) business days after receiving it from us;

(f) We suspect that you have violated the laws of a relevant jurisdiction in your conduct (whether prior to or after the Effective Date of the Agreement) in respect of your Dispute with a Merchant;

(g) You provide any misleading information to us; or

(h) You fail to pay any invoice issued in accordance with the terms of the Agreement within thirty (30) days after the date of issuance.

6.  Fees and Payment

Our fees (collectively, the “Fees”) for the Services comprise of a retainer (the “Up-Front Fee”) and success fee(s) (the “Success Fee”). 

(a) Up-Front Fee: The Up-Front Fee becomes due upon your signing the Statement of Work and such Up-Front Fee represents our non-refundable fees for taking on your case and providing Services listed on the Statement of Work. Our Up-Front Fee may be subject to increase in the event that our Services shall become required with respect to more Merchants and/or financial institutions than the number of each listed on your Statement of Work.

(b) Success Fees, Generally: In addition to the Up-Front Fee listed above, you agree to pay a success fee (“Success Fee”) in the amount of five percent (5%) of any full or partial payment that you receive at any time after the date that you sign the Statement of Work either from, or on behalf of the Merchant(s).

(c) Success Fees Accrue Based on Information to be Provided by You: You agree to inform us within two (2) business days of any amount that you receive either directly from the Merchant(s) or indirectly from a third party, such as from a law firm or as a credit from a financial institution to your bank account, credit card or debit card. In the event that we do not receive any update from you for 60 days after your Dispute was presented to the relevant financial institution(s), a Success Fee in relation to the entire amount of your Dispute will become due and payable.

(d) Limited Exception to the Success Fee. A Success Fee will be refunded to you in the unlikely event that your card issuer or other financial institution issues you a refund or credit that is later rescinded or recaptured by the financial institution.

(e) Success Fees Are Otherwise Payable:  The Success Fee is due with respect to any amount that you receive from, on behalf of, or with respect to the Merchant(s) after you sign the relevant Statement of Work, regardless of whether: 

    (i) Partial Payments: The amount you received from or on behalf of the Merchant(s) represents the whole amount that you hoped to receive, or only a partial payment;

    (ii) Direct and Indirect Payments: You received the funds directly from the Merchant(s) or indirectly through either us or a third party, such as a law firm or as a credit from a financial institution to your bank account, credit card or debit card;

    (iii) On Original Deposits and Trading Profits (if any): The amount that you received represents your original deposit(s) to the Merchant or profit that you earned through trades and/or investments that you placed through the Merchant;

    (iv) Regardless of Merchant’s Reason for Paying: The Merchant(s) were caused or motivated to return your funds by the actions of you, Cactil or any other third party.

    (v) Regardless of the Time of Payment: You receive payment from, or on behalf of, the Merchant before or after the expiration of the Agreement; indeed, during the term of the Agreement and for a period of three (3) years following the termination of the Agreement, Cactil shall be entitled to Success Fees with respect to any payments you receive from, or on behalf of the Merchant(s) listed on the Statement of Work.

(f)  Other Fees: Processing your Dispute may involve translation, notarization and/or apostilles, and we may encounter other unanticipated fees and expenses for legal, accounting and other costs not specifically contemplated on your Statement(s) of Work. You agree to pay these fees within seven (7) business days after we notify and/or invoice you for such fees and expenses.

(g) Payment of Fees: Our Payment Instructions are set forth on Schedule A of the Statement of Work. Payment of Cactil’s fees may be made by wire transfer and/or credit/debit card. All fees shall be payable in immediately clearable funds in U.S. dollars or, if applicable, in the amount as stated in local currency denomination on the Statement of Work.

(h) Remedies for Non-Payment: In the event that Cactil has not received your payment of a Success Fee within seven (7) business days after it became due and owing under this Section 6, Cactil reserves the right to charge interest at the rate of the lower of:

    (i) two percent (2%) per month or

    (ii) the highest rate of interest allowable under applicable law. Interest shall accrue at such a rate both before as well as after any court judgment. Cactil reserves the right to use third party collection firms in the event that fees remain uncollected for more than 60 days, and you agree to pay for all expenses related to the collection of your Fees.

7.  Audit Rights

During the term of the Agreement and for a period of one (1) year thereafter, Cactil shall have the right to nominate either an independent certified public accountant or other qualified professional (in either case, the “CPA”), who shall have access during reasonable business hours to such of your records as are necessary to verify the accuracy of information required to be disclosed to Cactil under the terms of the Agreement, including, but not limited to, the Fees payable under Section 6 hereof. You shall disclose to the CPA such information pertaining to Fees (under Section 6 hereof) as are reasonably requested by Cactil or the CPA to determine the accuracy of such information. Cactil shall be solely responsible for the costs of any such audit; provided, however, that the costs of the audit will be borne solely by you if the audit reveals that Cactil has been underpaid Fees in excess of five percent (5%).

8.  Indemnification

You shall indemnify, defend, and hold harmless Cactil from any liability, loss, claim or expense (including reasonable attorney fees) related to your breach of the Fund Recovery Services Agreement, including your presentation in respect of a dispute of any required documentation that is incorrect, fraudulent or false.

9. Limitation of Liability

Cactil shall not be liable for any loss or damage whatsoever as a result of the work conducted under this Agreement, save in the case of gross negligence, willful misconduct or fraud. CACTIL DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF ITS SERVICES. YOU EXPRESSLY AGREE THAT THE FUND RECOVERY SERVICES ARE PROVIDED HEREUNDER TO YOU ON AN “AS IS” BASIS. CACTIL HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE. EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF CACTIL AND ITS EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, CACTIL’S LIABILITY FOR ANY DAMAGES OR LOSS, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED IN THE AGGREGATE THE FEES WHICH HAVE ACTUALLY BEEN PAID BY YOU TO CACTIL UNDER THIS AGREEMENT. IN NO EVENT WILL CACTIL OR ITS EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, OPPORTUNITY, BUSINESS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

10.  Data Protection and Privacy

(a) For the purposes of this Section, “Data Protection Legislation” means:

    (i) unless and until it is no longer directly applicable,  Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) and

    (ii) any national implementing laws, regulations, and secondary legislation, as amended or updated from time to time, as well as any successor legislation to GDPR.

(b) Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Section 10 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

(c) We are registered as a data controller and will process your personal data only in accordance with GDPR, these Terms and Conditions and our Privacy Policy. Our registration number as data controller is ZA664835.

(d) We may collect and use information (including personal data as defined by Data Protection Legislation) from you during the course of our relationship with you. How we collect, store, use or share your personal data is explained in our Privacy Policy, which is published on our website at https://mychargeback.com/legal/privacy-policy/. Our Privacy Policy sets out types of personal data which we collect about you, additional ways in which we safeguard and use such personal data including but not limited to the details of the legal grounds of processing, and your rights under the Data Protection Legislation such as access, withdrawal of consent, erasure, restriction, transport, and object to the processing of your personal data.

(e) The legal basis for us processing your personal data described in the Privacy Policy will typically be because the processing is necessary:

    (i) to fulfill our obligations under the Agreement;

    (ii) for legitimate business interests;

    (iii) for compliance with a legal obligation; or

    (iv) because you have provided us with your consent, or in the case of your sensitive personal data, your explicit consent.

(f) We may share your personal data with any of our agents and affiliate companies, including data processors, who may only use your personal data for the same purposes as us. Such purposes include those listed in our Privacy Policy. We may also share your information with card issuers and other financial institutions to whom we may communicate on your behalf in relation to your Dispute(s). We will take appropriate measures to protect the security of your personal data and details of the companies and countries involved in the processing of your personal data, complying at all times with Data Protection Legislation.

(g) Any telephone conversations between you and us may be recorded. All instructions received by telephone will be binding as if received in writing. Our recordings shall be and remain our sole property and will be accepted as conclusive evidence of the instructions or conversations so recorded. You agree that we may deliver copies of transcripts of such recordings to any court, regulatory or governmental authority.

(h) If you would like to change or modify information previously provided to us, to remove information from our database or elect not to receive certain communications from us, you should write to the Data Protection Officer as set out in the Privacy Policy.

(g) Any telephone conversations between you and us may be recorded. All instructions received by telephone will be binding as if received in writing. Our recordings shall be and remain our sole property and will be accepted as conclusive evidence of the instructions or conversations so recorded. You agree that we may deliver copies of transcripts of such recordings to any court, regulatory or governmental authority.

(h) If you would like to change or modify information previously provided to us, to remove information from our database or elect not to receive certain communications from us, you should write to the Data Protection Officer as set out in the Privacy Policy.

11.  Confidentiality; Trade Secrets

(a) Confidentiality Obligation: Confidentiality Obligation: Subject to the permitted disclosures under Sections 10 and 11 hereof, and as further explained in our Privacy Policy, we will treat all information that we hold about you as private and confidential, even when you are no longer a client. Indeed, all Confidential Information (as defined below) provided by you and Cactil (each, a “Disclosing Party”) pursuant to the Agreement, shall be treated as confidential by the other Party (the “Receiving Party”) and shall not be communicated, copied or otherwise divulged to any other person or party whatsoever without the Disclosing Party’s written consent. The Receiving Party agrees that they may only disclose information (to the extent reasonably necessary):

    (i) to its legal and financial advisors in relation to its rights and duties under the Agreement;

    (ii) to its associates, officers, employees, advisers (financial or legal) or agents in relation to its work under the Agreement;

    (iii) where such disclosure is required by law or court order;

    (iv) in connection to legal proceedings between the Parties relating to the Agreement.

(b)  Definition of Confidential Information:  “Confidential Information” means any information which is marked as “Confidential” or “Proprietary” or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; including, without prejudice to the generality of the foregoing, the terms of the Agreement as well as business plans, data, strategies, methods and customer data. For avoidance of doubt, Cactil’s work product and methodologies shall be considered both as Confidential Information and the proprietary intellectual property of Cactil. Confidential Information does not include any information disclosed by the Disclosing Party which:

    (i) is rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party;

    (ii) is released to any other person or entity without restriction;

    (iii) is independently developed by the Receiving Party without any use of or reliance on Confidential Information;

    (iv)  is in or enters the public domain without breach of this confidentiality obligation;

    (v) or may be lawfully obtained by us from any third party.

(c) Trade Secrets:  The Parties stipulate that Cactil’s work product and methodologies constitute trade secrets under applicable law.

(d) Equitable Remedies:  Each Party acknowledges and agrees that the agreements and covenants set forth in this Section 11 are reasonable and necessary for the protection of each Party’s business and other interests, that irreparable injury will result if a Party breaches any of the terms of said covenants, and that in the event of a Party’s actual or threatened breach of any such covenants, the non-breaching Party will have no adequate remedy at law. Each Party accordingly agrees that, in the event of any actual or threatened breach by the other Party of any of said covenants, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, and that no posting of bond shall be required. Nothing in this Section 11 will be construed as prohibiting the non-breaching Party from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of any monetary damages that it is able to prove.

12.  General

(a) Assignment: Cactil may assign the Agreement by providing notice of such assignment to you at the address listed on the Statement of Work. Your rights and obligations under the Agreement are personal to you and may not be assigned without the prior written consent of Cactil. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the Parties hereto and, except as otherwise specified herein, their respective heirs, legal representatives, successors and assigns.

(b) Force Majeure: Cactil is not liable for failing to fulfill its obligations due to acts of God, civil or military authority, war, riots, strikes, fire, or other causes beyond its reasonable control.

(c) Severability:  If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.

(d) Legal Disputes: The provisions of this Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York, and the exclusive forum for any litigation arising under this agreement shall be the federal and state courts located in the Borough of Manhattan, New York; provided, however, that Cactil may, at its sole election, assert any claims arising over the Fees described in Section 6 hereof in the jurisdiction of either your residence or any Cactil affiliate.

(e) Survival: Upon termination or expiration of the Agreement, all rights, duties and obligations of the Parties hereunder shall terminate, except that claims related to a Party’s violation of this Agreement, as well as any terms normally expected to survive termination (including, but not limited to payments of Success Fees under Section 3 hereof), shall remain intact.

(f) Notices: Any notice required under this agreement shall be sent by either email or certified or registered mail, return receipt requested, to the address of the other party as listed on the Statement of Work.

(g) Waiver: Cactil’s failure to act with respect to a breach by you does not waive Cactil’s right to act with respect to subsequent or similar breaches. Cactil does not guarantee that it will take action against all breaches of this Agreement.

(h) Priority of Documents: In the event of any inconsistency between the Statement of Work, these Terms and Conditions and the Description of Services, the Statement of Work will prevail, followed by the Terms and Conditions, followed by the Description of Services.

(i) Entire Agreement: The Fund Recovery Services Agreement supersedes all previous agreements, negotiations, understandings and discussions of the Parties with respect to the Services referenced herein. The Parties acknowledge that any communications between the Parties prior to the Effective Date of said Agreement have been for purposes of determining the scope of, and fees for, our Services and shall not serve as notice (e.g. of facts pertaining to your fund recovery claims) or advice of any kind. The Fund Recovery Services Agreement may be amended only in a writing signed by both Parties.

DESCRIPTION OF SERVICES

Collection and review of documentation: Upon engagement by a new client our Document Review Team will solicit all necessary documentation from the new client pertaining to their funds recovery dispute. The Document Review Team will create a case file for the client documents using Cactil’s proprietary dispute tracking software. Once all the documents needed have been collected, the client will be informed and the Document Review Team will review the case.

Credit Card Dispute Service: If the method of payment to the Merchant was via Credit Card and qualifies for a Credit Card dispute based on the Card Network Schemes, dates of transactions, and issuing bank’s policy, Cactil will advise the client and prepare all necessary information necessary to file a credit card chargeback request. Please note: The final decision regarding chargeback requests rests with the issuing bank and acquiring banks according to their internal policies and the Card Network Schemes.

Prepare Case Write-Up (also known as Dispute File) and Finalize Documentation for Submission: A written request detailing the case will be prepared by Cactil for the client to submit to the issuing bank. The Client will then need to update the Company once the write-up is submitted regarding any response from the bank.

Up to One (1) Phone Consultation, as Needed, with Financial Institutions: Depending on the credit/debit card issuing bank, a Cactil representative will participate in up to one (1) conference call with the Client and the issuing bank.