Watchman Payment Systems Terms of Service

Rev. 10.01.2020

1. Acceptance of Terms

Thank you for selecting Watchman Payment Systems. Subject to this Terms of Service (this “Agreement”), Watchman Payment Systems LLC (“WPS”, “us”, “we”, or “our”) gives you certain rights and imposes on you certain responsibilities as more fully described below. By accepting this Agreement or by accessing our Service (as defined below), you indicate that you have read, fully understood and agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.

WPS shall have the right to change or add to the terms of this Agreement at any time by providing you with thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice in the Service or on www.watchmanpaymentsystems.com (the “Site”). The revised Agreement will become effective thirty (30) days after we post or send you notice of such changes. Any use of the Service by you after that date shall constitute your acceptance of this Agreement as modified. If any change to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to legal@watchmanpaymentsystems.com.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy and the WPS API License Agreement located at https://www.watchmanpaymentsystems.com. The use of certain services also requires an agreement with the third-party owner of the service. All such terms are incorporated by reference into these Terms of Service.

2. Description of Service

The “Service” includes (a) the Site; (b) WPS’s integrations and software applications with third-party service providers including, but not limited to, Automation Dynamics, Inc. (d/b/a Trimdata Corp), Clover Network, Inc. (a wholly-owned subsidiary of Fiserv, Inc.) CardConnect LLC (a wholly-owned subsidiary of Fiserv, Inc.), TPS Unlimited, Inc. (d/b/a TaxJar), The CBORD Group, VitalSource Technologies LLC, and RedShelf; (c) WPS’s bursar billing software for the use of sponsored accounts and third-party funds and reconciliation services and related technologies; (d) WPS’s point-of-sale software modules for managing promotions, gift cards, store credit and related technologies; and (e) all software, data, reports, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this Agreement.

The Service may update automatically from time-to-time, and you may be required to accept these updates to continue using the Service. WPS may perform maintenance on the Service, which may result in service interruptions or delays from time-to-time. WPS may not support older version the Service.

3. Access and Use

Subject to the terms and conditions of this Agreement, you may use the Service solely to enable and track transactions associated with sales in the course of your store’s ordinary business. You are not licensed or permitted under this Agreement to do any of the following: (i) attempt to access any other WPS systems, programs or data that are not made available for public use; (ii) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws); (iii) work around any technical limitations in the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, or otherwise reverse engineer the Services except as otherwise permitted by applicable law, (iv) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party (v) perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or the use of the Services by WPS’s other licensees or customers, or impose an unreasonable or disproportionately large load on WPS’s infrastructure; or (vi) otherwise use or otherwise exploit the Services except as expressly allowed under this Section 3. You shall comply with any codes of conduct, policies or other notices WPS provides you or publishes in connection with the Services, and you shall promptly notify WPS if you learn of a security breach related to the Services.

4. Reservation of Rights and Ownership; Your Content

WPS reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property laws. This Agreement does not grant you any rights to trademarks or service marks of WPS or any third party.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You own all right, title and interest in and to Your Content. Notwithstanding anything to the contrary, WPS shall have the right to collect and analyze data and other information relating to the Services and related systems and technologies (including, without limitation, information concerning Your Content and data derived therefrom), and WPS will be free (during and after the Term) 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 WPS offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

WPS has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that WPS may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. You understand that the operation of the Service, including Your Content, in certain circumstances, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to WPS’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. WPS will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, Internet connectivity, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in WPS’s published policies then in effect.

The failure of WPS to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and WPS, even though it is electronic and is not physically signed by you and WPS, and it governs your use of the Services.

WPS reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on WPS’s website and in other communication with existing or potential WPS customers. To decline WPS this right you need to email support@watchmanpaymentsystems.com stating that you do not wish to be used as a reference.

5. Rights You Grant To Us

By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content to WPS through the Services, you expressly authorize WPS to access and use your account information maintained by identified third parties, on your behalf as your agent. WPS may use and store the content in accordance with this Agreement and our privacy policy. You represent that you are entitled to submit it to WPS for use for this purpose, without any obligation by WPS to pay any fees or be subject to any restrictions or limitations. You hereby authorize and permit WPS to use and store information submitted by you to accomplish the foregoing and to configure the Services so that it is compatible with the third-party sites for which you submit your information. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Services. WPS is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate account information.

6. Feedback

WPS may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its online products and services (“Feedback”). You hereby grant WPS a perpetual, worldwide, fully transferable, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute and display the Feedback in any manner for any purpose.

7. Third-Party Services

In connection with the promotion or your use of the Services, the Services may enable linking with, or otherwise make you aware of various third-party services and products (“Third-Party Services”). These Third-Party Services may include credit card processing, sales tax related services, financial aid billing services, automated inclusive access billing, and closed network card services, among others. If you decide to use Third-Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third-Party Services. To take advantage of features and capabilities related to linked Third-Party Services, we may ask you to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. For more information about the implications of activating these Third-Party Services and WPS’s use, storage and disclosure of information related to you and your use of Third-Party Services within WPS, please see our privacy policy at https://www.watchmanpaymentsystems.com. However, please remember that the manner in which Third-Party Services use, store and disclose your information is governed solely by the policies of such third parties. You agree that the third-party provider, and not WPS, is solely responsible for the performance of the Third-Party Services.

8. Third-Party Websites

The Services may contain or reference links to websites or other resources on the Internet (including without limitation Third-Party Services) operated by third parties (“Third-Party Websites”). These links are provided as a convenience only. Such Third-Party Websites are not under the control of WPS. WPS is not responsible for the content of any Third-Party Website or any link contained in a Third-Party Website. WPS does not review, approve, monitor endorse, warrant, or make any representations with respect to Third-Party Websites, and the inclusion of any link in the Services is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by WPS or its Suppliers (defined below) of any information contained in any Third-Party Website. In no event will WPS or its Suppliers be responsible for the information contained in such Third-Party Website or for your use of or inability to use such website. Access to any Third-Party Website is at your own risk, and you acknowledge and understand that linked Third-Party Websites may contain terms and privacy policies that are different from those of WPS and its Suppliers. Neither WPS nor its Suppliers are responsible for such provisions, and expressly disclaim any liability for them.

9. Payment & Collection

To the extent the Service or any portion thereof is made available for any fee, you agree to enter into a direct debit agreement with WPS or another mutually acceptable payment instrument. You represent and warrant to WPS that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your bank account or billing address) that may occur. In the event you owe WPS any amounts related to your licensing of the Services, WPS reserves the right to seek collection of any amount unpaid. You hereby authorize WPS to bill your payment instrument with any such owed amounts. If you dispute any charges you must let WPS know within sixty (60) days after the date that WPS bills you. We reserve the right to change WPS’s prices. If WPS does change prices, WPS will provide notice of the change on the Site or in email to you, at WPS’s option, at least 14 days before the change is to take effect.

10. Representations and Warranties

You represent and warrant to WPS that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow WPS to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and WPS’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s right, nor does Your Content contain any matter that is unlawful; and (iv) you are eighteen (18) years of age or older.

11. User ID and Password Security

You are the only person authorized to use your user ID and password and are responsible for maintaining the confidentiality of your user ID and password. You shall not permit or allow other persons to have access to or use your user ID and password, provided that WPS reserves the right to access your account to respond to your requests for technical support. You are responsible for all use of the Services under your user ID.

12. Privacy of Personal Information

Our privacy policy can be reviewed at https://www.watchmanpaymentsystems.com. To contact us with a question, email support@watchmanpaymentsystems.com.

13. DISCLAIMER OF WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WPS, ITS AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, RETAILERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) DISCLAIM ALL GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, QUALITY, TIMELINESS, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WPS DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, OR OTHER PROGRAM LIMITATIONS NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM WPS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OF SERVICES, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.

14. LIMITATION OF LIABILITY AND DAMAGES

YOU UNDERSTAND THAT WPS MAY NOT AUDIT OR OTHERWISE VERIFY ANY INFORMATION YOU PROVIDE, AND IS NOT RESPONSIBLE FOR YOUR CONTENT.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE ENTIRE CUMULATIVE LIABILITY OF WPS AND ITS SUPPLIERS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR LICENSE OR USE OF SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES TO WPS IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WPS AND ITS SUPPLIERS ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS OR INVESTMENT, INABILITY TO FILE YOUR TAX RETURN , INCORRECT OR INCOMPLETE INFORMATION PROVIDED TO WPS, ANY ACCESS TO, OR USE OF, YOUR PASSWORD AND USER ID BY AN UNAUTHORIZED PERSON, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF WPS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL WPS BE LIABLE FOR ANY LOSS, COST, LIABLITY OR DAMAGE INCURRED AS A RESULT OF YOUR RECEIPT OF OR PARTICIPATION IN THIRD-PARTY SERVICES OR THIRD-PARTY WEBSITES. IN NO EVENT DOES WPS ASSUME ANY LIABILITY TO ANY PARTY OTHER THAN YOU ARISING OUT OF YOUR USE OR INABILITY TO USE THE SERVICES.

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WPS AND YOU. WPS WOULD NOT BE ABLE TO HAVE PROVIDED THE SERVICES WITHOUT SUCH LIMITATIONS.

15. Indemnification

You shall defend, indemnify, and hold harmless WPS from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any of Your Content, or your other access, contribution to, use or misuse of the Service. WPS shall provide notice to you of any such claim, suit or demand. WPS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting WPS’s defense of such matter.

16. Miscellaneous

You may not assign this Agreement without the prior written consent of WPS, but WPS may assign or transfer this Agreement, in whole or in part, without restriction. This Agreement (and any additional terms and conditions with which WPS amends or supplements this Agreement), is a complete statement of the agreement between you and WPS, and sets forth the entire liability of WPS and its Suppliers and your exclusive remedy with respect to the Services and their use. Except as expressly stated in Section 5, you agree that WPS is not acting as your agent or fiduciary in connection with your use of the any Services. The Suppliers, agents, employees, distributors, and dealers of WPS are not authorized to make any additional representations, commitments, or warranties binding on WPS. Any waiver of the terms herein by WPS must be in a writing manually signed by an authorized officer of WPS and expressly referencing the applicable provisions of this Agreement. WPS shall be not be liable for any default or delay in the performance of its obligations under this Agreement to the extent its performance is delayed or prevented due to causes beyond its reasonable control, such as acts of God, natural disasters, terrorist acts (including ransomware attacks or similar malware), war or other hostilities, labor disputes, civil disturbances, the actions or omissions of third parties, electrical or communication system failures, or governmental action. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement shall be governed by Utah law as applied to agreements entered into and to be performed entirely within Utah, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in Salt Lake County, Utah or federal court for the District of Utah. You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any dispute arising out of or related to use of the Services must be properly filed within one (1) year after such claim or cause of action arose. Absent such filing within one year from the date the dispute arose, the dispute will be forever barred. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement “including” means “including but not limited to”. This Agreement does not limit any rights that WPS may have under trade secret, copyright, patent or other laws.

17. Termination

Subject to earlier termination as provided below, WPS may terminate your account and this Agreement at any time by providing notice to the administrative email address associated with your account. Your rights under this Agreement may be terminated by WPS upon fifteen (15) days’ notice if you fail to comply with any term or condition of this Agreement or no longer consent to electronic Communications, or upon ten (10) days’ notice upon failure to make the specified payments. Upon such termination, you must immediately cease using the Services. Any termination of this Agreement shall not affect WPS’s rights hereunder, and the provisions of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination. WPS reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by WPS upon any termination of your account in its sole discretion. You may terminate your account with WPS at any time from within your account settings, by discontinuing use of the Services, or by notifying WPS at legal@watchmanpaymentsystems.com.

18. U.S. Government Restricted Rights

You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by WPS on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.