Datacap Software Terms of Use

(v10-25-2019)

Datacap Systems, Inc (“Datacap”) offers several software products to enable merchants to accept and process payments with their preferred payment processors and services.

  • Datacap offers NETePay™ and GIFTePay™ software to merchants to access either via installation on the merchant’s computer/server (referred to in these Terms of Use as “ePay Store Server”) or accessible on servers hosted by Datacap (referred to in these Terms of Use as “ePay Hosted”).
  • Datacap offers its TranCloud™ software to merchants via installation of a TranCloud™ device interfaced to the merchant’s computer/server interfaced to services hosted by Datacap (referred to in these Terms of Use as “TranCloud”).
  • Datacap offers its Tran™ software to merchants via installation of a Tran™ device (such as an IPTran LT or Tran Server) interfaced to the merchant’s computer/server (referred to in these Terms of Use as “Tran”).

ePay Store Server software, ePay Hosted Software, Tran software and TranCloud software are sometimes collectively referred to in these Terms of Use as “Datacap Software”). ePay Hosted software and TranCloud software are sometimes collectively referred to in these Terms of Use as “Datacap Hosted Software”).

 

The license granted herein for:

  • ePay Store Server allows the merchant to install and use the Datacap software on the merchant’s computer to process credit and debit card and other transactions (NETePay Store Server) and/or gift and loyalty and other transactions (GIFTePay Store Server).
  • ePay Hosted links a merchant’s computer to a server hosted by Datacap, which in turn transmits transactions to payment processing provider platform(s), thus enabling the merchant to process credit and debit card and other transactions (NETePay Hosted) and/or gift and loyalty and other transactions (GIFTePay Hosted) from any computer with Internet access.
  • TranCloud allows the merchant to install and use the Datacap software on a TranCloud device interfaced to the merchant’s computer via services hosted by Datacap, which transmits transactions to payment processing provider’s platform(s), thus enabling the merchant to process credit and debit card transactions and/or gift and loyalty transactions and/or other transactions from any computer with Internet access.
  • Tran allows the merchant to install and use the Datacap software on a Tran device interfaced to the merchant’s computer which transmits transactions to payment processing provider’s platform(s), thus enabling the merchant to process credit and debit card transactions and/or gift and loyalty transactions and/or other transactions from any computer with Internet access.

 

Datacap Software is typically linked to a product or service licensed by the merchant from an independent software provider (“ISP”) or value added reseller (“VAR”) often pursuant to an agreement between Datacap and such ISP or VAR (referred to in these Terms of Use as the “ISP Agreement”). Datacap Software may be provided to the merchant by a user software developer (“USD”) pursuant to an agreement between Datacap and such USD (referred to in these Terms of Use as the “USD Agreement”). Datacap Software may be provided to the merchant by a payment processing provider (“Acquirer”) pursuant to an agreement between Datacap and such Acquirer (referred to in these Terms of Use as the “Acquirer Agreement”). ISP Agreements, USD Agreements and Acquirer Agreements are sometimes collectively referred to in these Terms of Use as “Provisioning Agreement(s)”, and ISPs, VARs, USDs and Acquirers participating in Provisioning Agreements are “Provisioning Agent(s)”. If a merchant downloads, installs or uses the Datacap Software, whether as part of a separate product or service offered by a Provisioning Agent, or through a direct Datacap offering, such merchant (“Merchant”) accepts and agrees to comply with the following terms of use (the “Datacap Software Terms of Use”). IF MERCHANT DOES NOT ACCEPT ANY OF THE FOLLOWING TERMS OF USE, MERCHANT SHOULD NOT USE THE DATACAP SOFTWARE. MERCHANT ACKNOWLEDGES THAT MERCHANT’S USE OF DATACAP SOFTWARE IS SUBJECT TO THE PROVISIONING AGREEMENT AND THAT A BREACH UNDER THE PROVISIONING AGREEMENT COULD RESULT IN THE TERMINATION OF MERCHANT’S LICENSE TO USE DATACAP SOFTWARE.

 

By accepting these Datacap Software Terms of Use, Merchant represents, warrants and covenants that: (i) such acceptance is being made by a person 18 years of age or older, (ii) all information that has been or will be provided to Datacap or to its Provisioning Agent in connection with its use of Datacap Software is true, complete, and correct in all respects, and (iii) any changes to such information will be updated promptly in writing to Datacap. Merchant further represents and warrants that he, she or it has the legal authority to accept these Datacap Software Terms of Use on behalf of Merchant and that such acceptance is binding on Merchant in all respects.

 

  1. Rights to, and Restrictions on Use of, Datacap Software.

 

(a) Merchant acknowledges that Datacap and its licensors hold all right, title and interest in and to Datacap Software, including but not limited to all intellectual property rights associated with Datacap Software. Datacap Software is protected by the copyright laws of the United States, international treaties and conventions, and other laws. Merchant has no intellectual property rights in Datacap Software, and Datacap and its licensors reserve all rights not expressly granted to Merchant under these Datacap Software Terms of Use. Merchant must comply with all laws when using Datacap Software, as well as all applicable copyright, trademark and other legal notices or restrictions.

 

(b) Grant of License:

 

(i)         ePay Store Server version: Datacap grants Merchant a personal, limited, non-exclusive, revocable, non-transferable right to access and use ePay Store Server in accordance with these Datacap Software Terms of Use on one computer. Merchant may make one copy only of the Datacap Software in machine-readable form for backup purposes only. Such backup copy must include all copyright information and notices contained on the original version provided to Merchant. Merchant shall not remove or alter any copyright notices contained on the original. This license permits the use of the Datacap Software to process transactions from multiple workstations up to the exact number of workstations, lanes, clients, or points of service terminals authorized at the time of deployment of the Datacap Software.

 

(ii)        ePay Hosted Version: Datacap grants Merchant a personal, limited, non-exclusive, revocable, non-transferable right to access and use ePay Hosted in accordance with these Datacap Software Terms of Use, on a compatible device that (i) has not been modified contrary to the manufacturer’s guidelines, and (ii) runs a validly licensed copy of the operating system for which ePay Hosted was designed. Devices with disabled hardware and software controls are not compatible devices. Merchant acknowledges that the use of any such modified device in connection with ePay Hosted is expressly prohibited.

 

(iii)       TranCloud: Datacap grants Merchant a personal, limited, non-exclusive, revocable, non-transferable right to access and use TranCloud in accordance with these Datacap Software Terms of Use on one TranCloud hardware device. This license permits the use of the Datacap Software to process transactions from multiple workstations up to the exact number of workstations, lanes, clients, or points of service terminals authorized at the time of deployment of the Datacap Software. Devices with disabled hardware and software controls are not compatible devices. Merchant acknowledges that the use of any such modified device in connection with TranCloud is expressly prohibited.

 

(iv)       Tran: Datacap grants Merchant a personal, limited, non-exclusive, revocable, non-transferable right to access and use Tran in accordance with these Datacap Software Terms of Use on one Tran (e.g. IPTranLT, Tran Server) hardware device. This license permits the use of the Datacap Software to process transactions from one or multiple workstations up to the exact number of workstations, lanes, clients, or points of service terminals authorized at the time of deployment of the Datacap Software. Devices with disabled hardware and software controls are not compatible devices. Merchant acknowledges that the use of any such modified device in connection with Tran is expressly prohibited.

 

 

(c) Merchant may not, nor may it permit any third party to, do any of the following: (i) access or monitor any material or information on Datacap Software using any manual process or robot, spider, scraper, or other automated means; (ii) copy, reproduce, alter, remove, modify, create derivative works, publicly display, republish, upload, post, transmit, sell or distribute in any way software, material or information concerning  Datacap Software; (iii) permit any third party to use and benefit from Datacap Software; (iv) work around, bypass, or circumvent any of the technical limitations of Datacap Software, use any tool to enable features or functionalities that are otherwise disabled in Datacap Software, or decompile, disassemble or otherwise reverse engineer Datacap Software, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of Datacap Software, prevent access to or use of Datacap Software by Datacap’s other users, or impose an unreasonable or disproportionately large load on Datacap’s infrastructure; (vii) make Datacap Software available to any other person or entity, exploit, sell, transfer, assign, distribute, encumber, lend or electronically transfer or communicate use in a network time-sharing arrangement, computer service business, multiple CPU environment or arrangement or otherwise make available or grant rights in Datacap Software; or (viii) remove any of the copyright notices, or other proprietary identifiers or labels; or (ix) otherwise use Datacap Software except as expressly allowed under these Datacap Software Terms of Use.

 

(d) Datacap reserves the right at any time to modify or discontinue, temporarily or permanently, Merchant’s access to and/or use of Datacap Software, or any part thereof. Datacap may also adopt additional restrictions regarding the use of Datacap Software, or any part thereof. Such actions may be taken by Datacap with or without notice.

 

(e) All of Merchant’s right, title and interest in and to any ideas, feedback, drawings, and/or content Merchant generates that lead directly or indirectly to improvements in Datacap Software, new products introduced by Datacap, or new business lines (and all proprietary rights with respect thereto), are hereby assigned by Merchant to Datacap.

 

  1. Support.

 

Datacap may provide Merchant with support services related to Datacap Software. Datacap may also, in its discretion, issue updates, corrections, and new releases (a “Change”) to Datacap Software. Datacap is not responsible for any damages suffered as a result of such support services or Changes. If Datacap chooses to issue a Change, then the Datacap Software Terms of Use shall apply to such Change, and such Change shall be treated as incorporated into Datacap Software for purposes of the Datacap Software Terms of Use. Changes may require that Merchant agree to additional or revised terms and conditions as a condition of continued use of Datacap Software. For avoidance of doubt, Datacap has no obligation to provide Changes, maintenance or support to Merchant or any person having access to Datacap Software.

 

  1. Access/Transmissions.

 

(a) Datacap will use reasonable efforts to ensure that Datacap Hosted Software is accessible on a 24/7 basis. However, there will be occasions when Datacap Hosted Software will be interrupted (i) for maintenance, repairs and Changes, or (ii) because of the failure of telecommunications or of Merchant’s devices or systems, each of which is beyond Datacap’s control. Datacap will not be liable to Merchant for any suspension or interruption of Datacap Hosted Software.

 

(b) Datacap Software offers a “store and forward” feature that permits Merchant to store transactions and defer authorization or processing in the event of internet outages, to avoid delays in servicing customers, or for another reason Merchant decides to use this feature. Merchant acknowledges that transactions that Merchant elects to “store and forward” are reported once the transaction has been processed. Merchant is solely responsible for resuming the processing of transactions that Merchant elects to “store and forward”. DATACAP ASSUMES NO LIABILITY FOR DELAYS IN PROCESSING SUCH TRANSACTIONS OR FOR ANY SUCH TRANSACTIONS THAT MAY BE LOST.

 

(c) Datacap offers 3rd Party Products and Services from time to time, which may include products and services originated by various 3rd parties that are provided or supported by Datacap for the convenience and benefit of Merchants.  3rd Party Products and Services also includes products and services provided to Merchants separately and independently of Datacap that are dependent on the use of Datacap Software. Merchant assumes full responsibility and risk for the use of all 3rd Party Products and Services and is solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information and the quality and merchantability provided through such services. Merchant understands and agrees that if Datacap Software is deactivated for any reason, Merchant’s use of and access to any associated 3rd Party Products and Services may be interrupted or deactivated. DATACAP ASSUMES NO LIABILITY FOR INTERRUPTION IN OR TERMINATION OF THE ACCESS OR USE OF 3RD PARTY PRODUCTS AND SERVICES, WHETHER PROVIDED TO MERCHANT BY DATACAP OR BY SOME OTHER 3RD PARTY.

 

(d) Due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus Datacap cannot guarantee that communications between a Merchant, on the one hand, and Datacap or payment processing providers, on the other, will be free from unauthorized access by third parties. Merchant assumes full responsibility and risk for the use of Datacap Software and the internet and is solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information and the quality and merchantability provided through such services or the internet. Merchant is solely responsible for any security breaches caused by Merchant or its employees or independent contractors.

 

(e) In order for Merchant to use Datacap Software to process credit and debit card transactions and/or gift and/or loyalty transactions, it must first obtain a merchant account with a payment processing provider to which Datacap Software is certified. Datacap may assist Merchant in obtaining such a merchant account through one of its approved payment processing providers, but it does not guaranty that such merchant account will be approved. In order to obtain a merchant account, Merchant will be required to provide accurate and complete information about it, some of which will include personal information, and also will be required to enter into a merchant agreement with the payment processing provider. Datacap may not be a party to such merchant agreement and, in such event, it assumes no responsibility, obligation or liability in connection with such merchant agreement, including but not limited to any actions or omissions by the payment processing provider in connection with the administration or enforcement of it. The merchant agreement contains terms and provisions that establish a number of responsibilities and obligations in the acceptance and submission of credit and debit card transactions, including without limitation a host of rules promulgated by applicable card associations and network organizations. The failure of Merchant to meet these responsibilities and obligations may result in, among other things, the termination of Merchant’s ability to accept and submit credit and debit card transactions, which in turn will result in termination of Merchant’s ability to utilize Datacap Software for credit and debit card transactions.

 

  1. Data.

 

(a) Merchant agrees that Datacap may maintain a profile of, and track, Merchant’s use of Datacap Hosted Software (the “Merchant Profile”), and may analyze the Merchant’s use of Datacap Hosted Software, in each case not in violation of these Datacap Software Terms of Use or Datacap’s privacy policy. Merchant maintains the right to request at any time that Datacap discontinue the use of such Merchant Profile by emailing or calling Merchant’s Provisioning Agent, provided that Datacap may continue to use the data from such Merchant Profile obtained prior to Datacap’s receipt of Merchant’s request for discontinuance.

 

(b) Datacap will in no event be liable to Merchant for the accuracy or correctness of the data or information passed between and among Merchant, Datacap and payment processing providers through the use of Datacap Hosted Software.

 

(c) Merchant is solely responsible for compiling and retaining for records of all data and information passed between and among Merchant, Datacap and payment processing providers through the use of Datacap Hosted Software. Upon the termination or cancellation of Merchant’s use of Datacap Hosted Software, Datacap will have no obligation to store, retain, report or otherwise provide any copies of or access to any such data or information.

 

  1. Privacy.

 

(a) Datacap may collect, retain, use, process, transfer and disclose data and information collected from Merchant and its customers (including without limitation data and information associated with credit and debit card transactions and/or gift and loyalty transactions) in accordance with these Datacap Software Terms of Use and Datacap’s then current privacy policy, available at https://www.datacapsystems.com/privacy-policy or such other location as specified by Datacap. Merchant hereby consents, as a condition of its enrollment in and use of Datacap Hosted Software, to the collection, retention, use, processing, transfer and disclosure of personal data as described in these Datacap Software Terms of Use and Datacap’s privacy policies.

 

(b) Merchant is solely responsible for lawfully collecting and using data and information that it collects using Datacap Hosted Software, for providing any notices and collecting any necessary consents from customers to use such data and information, whether in connection with the services or products sold by Merchant or independent of such services or products (such as sharing identifiable information with third parties or using the information for marketing purposes). Merchant may be required by federal and state privacy laws, among other things, to maintain a privacy policy and to comply with that policy relating to Merchant’s use of customer data and information. Merchant is strongly encouraged to speak with a qualified adviser regarding Merchant’s practices and applicable privacy laws. Merchant must also comply with the privacy policy of Datacap in the use of Datacap Hosted Software.

 

  1. Fees.

 

Datacap may charge a fee for use of the Datacap Software to Merchant or to Merchant’s Provisioning Agent or other third party partner. If such a fee is charged to Merchant, it will be explained in the merchant application or by separate notice to Merchant.

 

  1. Termination.

 

(a) Without limiting any of Datacap’s rights under the Datacap Software Terms of Use, Datacap may terminate Merchant’s right to access and use Datacap Software if Merchant fails to comply with the Datacap Software Terms of Use, in the event of a breach of the Provisioning Agreement, or if the Provisioning Agreement is terminated, cancelled or expires for any reason. Merchant’s right to use and access Datacap Software shall also terminate if and when the term of use of Datacap Software as set forth in any merchant application or other documentation expires or is terminated.

 

(b) In accordance with item 7 (a), if Merchant’s right to access and use Datacap Software is terminated for any reason, Merchant’s right to access and use any associated 3rd Party Products and Services (as described in item 3 (c)) may also be terminated, whether such 3rd Party Products and Services were provided to Merchant by Datacap or by any other 3rd party.  

 

(c) Merchant may cancel its use of Datacap Software at any time by emailing or calling their Provisioning Agent or other third party partner (POS or System Provider).

 

(d) Merchant will remain liable for the payment of all fees for its use of Datacap Software.

 

(e) Merchants using the ePay Store Server version of the Datacap Software shall destroy all copies of the Software upon termination of their license and return all original machine-readable media and printed materials to Datacap within ten (10) days of termination. Merchants using the TranCloud version or Tran version of the Datacap Software provided by a Provisioning Agent shall return the device to Datacap or to the Provisioning Agent within ten (10) days of termination of their license.

 

  1. Taxes.

 

If fees are charged to Merchant by Datacap under these Datacap Software Terms of Use, instead of through Merchant’s Provisioning Agent or other third party partner, then Merchant will be responsible for all taxes that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of the Datacap Software. For the avoidance of doubt, Merchant agrees that it is solely responsible for paying all sales and use taxes imposed on the license and use of Datacap Software, and Merchant shall indemnify, defend, and hold Datacap harmless from and against any and all claims for such taxes as more fully set forth in Section 10. The foregoing excludes any tax based upon Datacap’s net income.

 

  1. Merchant Account and Password.

 

If fees are charged to Merchant by Datacap under these Datacap Software Terms of Use, instead of through Merchant’s Provisioning Agent or other third party partner, then to access Datacap Software, the Merchant may be required to select a unique user name and password. In such event, the Merchant will: (i) keep the user name and password confidential; (ii) not allow any other entity or person to use the user name or password, or gain access to Datacap Software; (iii) be liable for all action taken by any user of the user name or password; and (iv) promptly notify Datacap if Merchant believes the user name or password has been used inappropriately or the confidentiality of the information made available through such use has been compromised. The use of the user name or password does not grant Merchant ownership of such user name or password, which is retained by Datacap. Datacap may revoke a Merchant’s user name or password at any time for any or no reason and without liability to Merchant.

                                                                      

  1. Waivers; Limitation of Liability and Indemnification.

 

Merchant agrees that Datacap, and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents, will benefit from, and be protected by, the following limitation of liability and warranty

provisions:

 

(a) MERCHANT AGREES AND ACKNOWLEDGES THAT DATACAP AND ITS LICENSORS AND VENDORS SHALL HAVE NO LIABILITY, EITHER IN TORT,

CONTRACT OR IN COMBINATION THEREOF, FOR CLAIMS ARISING IN CONNECTION WITH DATACAP SOFTWARE, EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF DATACAP. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DATACAP OR ITS LICENSORS OR VENDORS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, FOR LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT OR POWER SYSTEM, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT POWER OR TEMPORARY EQUIPMENT (INCLUDING ADDITIONAL EXPENSES INCURRED IN USING EXISTING FACILITIES), LOSS OF DATA, OR FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THESE TERMS OF USE.

 

(b) THE LIABILITY, IF ANY, OF DATACAP, WHETHER TO MERCHANT OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF: (i) THE AMOUNT OF FEES PAID TO DATACAP BY MERCHANT (OR BY MERCHANT’S PROVISIONING AGENT TO DATACAP ON ACCOUNT OF MERCHANT’S USE OF DATACAP SOFTWARE) DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (ii) $50.

 

(c) DATACAP SOFTWARE IS PROVIDED “AS IS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, DATACAP MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING DATACAP SOFTWARE, AND NOTHING CONTAINED IN THE DATACAP SOFTWARE TERMS OF USE WILL CONSTITUTE SUCH A WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATACAP EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES CONCERNING DATACAP SOFTWARE AND THE USE OR OPERATION OF DATACAP SOFTWARE, INCLUDING THOSE OF MERCHANTABILITY, SUITABILITY, QUALITY, TIMELINESS, RELIABILITY, ACCURACY, AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. DATACAP AND ITS LICENSORS AND VENDORS DO NOT WARRANT THAT: (A) THE DATACAP SOFTWARE WILL MEET MERCHANT’S REQUIREMENTS; (B) THE USE OR OPERATION OF DATACAP SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR ANY STORED, SUSPENDED, OR DEFERRED TRANSACTIONS WILL BE PROPERLY PROCESSED OR AUTHORIZED; (D) THE QUALITY OF DATACAP SOFTWARE OR ANY OTHER PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PROVIDED BY DATACAP WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICES OR THE HOST SERVERS THAT MAKE DATACAP SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; ALL OF THE FOREGOING ARE EXPRESSLY DISCLAIMED. DATACAP SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATACAP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

 

(d) DATACAP MAKES NO REPRESENTATION, WARRANTY OR GUARANTY IN RELATION TO ANY THIRD PARTY PRODUCTS OR SERVICES USED BY

MERCHANT IN CONJUNCTION WITH DATACAP SOFTWARE (INCLUDING WITHOUT LIMITATION THE SOFTWARE APPLICATION THAT INTEGRATES DATACAP SOFTWARE, PRODUCTS AND SERVICES ORIGINATED BY ANY 3RD PARTY AND PROVIDED TO MERCHANT BY DATACAP OR SOME OTHER PARTY TO BE USED IN CONJUNCTION WITH DATACAP SOFTWARE, AND ANY PRODUCTS AND SERVICES PROVIDED BY THE PAYMENT PROCESSING PROVIDER THROUGH WHICH MERCHANT ESTABLISHES A MERCHANT ACCOUNT). DATACAP DISCLAIMS ANY LIABILITY FOR CLAIMS OR LOSS INCURRED AS A RESULT OF THE USE OF ANY SUCH THIRD PARTY PRODUCT OR SERVICE.

 

(e) Merchant agrees that any cause or action arising out of or relating to DATACAP SOFTWARE must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

 

(f) Datacap is not responsible or liable for unauthorized access of facilities or to Merchant’s data, information or programs due to accident, illegal or fraudulent means or devices.

 

Merchant hereby agrees to defend, indemnify and hold harmless Datacap and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from (i) any alleged violation of the Datacap Software Terms of Use and/or any law, or (ii) Merchant’s use of Datacap Software.

 

Without limiting any other protections afforded Datacap under these Datacap Software Terms of Use, Datacap will not be held liable for failure to perform due to any contingency beyond its reasonable control such as acts of God, acts of government, war or other hostility, civil disorder, weather, fire, power failure, labor dispute, or other causes which are unavoidable.

 

In addition, Merchant acknowledges and agrees that Datacap has the right to recover from Merchant, damages incurred by Datacap when Merchant uses Datacap Software for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with these Datacap Software Terms of Use or any third party agreement (such as a merchant agreement), and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

 

  1. P2PE Services.

 

Merchant acknowledges that Datacap Software may not be a PCI-validated point-to-point encryption solution. Instead, Datacap partners with Bluefin Payment Systems (“Bluefin”) or other PCI-validated point-to-point encryption solution providers (all together “OEM vP2PE Solution Provider or Providers”) to offer to merchants a P2PE credit/debit card payment solution (“OEM vP2PE Solution”) developed and managed by OEM vP2PE Solution Provider. In the event that Merchant chooses to receive or use a OEM vP2PE Solution in connection with Datacap Software or any related service offered by Datacap, then the OEM vP2PE Solution shall be deemed to be a part of Datacap Software and related services and, accordingly, the OEM vP2PE Solution shall benefit from each and all of the provisions of these Datacap Software Terms of Use, as if it was a service provided directly to Merchant by Servicers under this Agreement. By way of example, but not by way of limitation, the OEM vP2PE Solution shall benefit from all of the rights and restrictions set forth in Section 10 above. Moreover, in accordance with Section 10 (d) above, Servicers make no representation, warranty or guaranty in relation to the OEM vP2PE Solution, and disclaim any liability for claims or loss incurred as a result of the use of the OEM vP2PE Solution. Merchant hereby agrees to look solely to OEM vP2PE Solution Provider in connection with the delivery, performance or termination of the OEM vP2PE Solution, as well as any service, warranty or other issue regarding the OEM vP2PE Solution, and agrees to comply with, and to be bound by, any and all terms of use or service published by OEM vP2PE Solution Provider and applicable to Merchant.

 

  1. 3rd Party Products and Services

 

Datacap may offer products and services, from time to time, which may include products and services originated by various 3rd parties that are provided or supported for use with Datacap Software for the convenience and benefit of Merchants.  3rd Party Products and Services also includes products and services provided to Merchants separately and independently of Datacap that are dependent on the use of Datacap Software. Merchant assumes full responsibility and risk for the use of all 3rd Party Products and Services and is solely responsible for evaluating the accuracy, completeness, and usefulness of all services, products, and other information and the quality and merchantability provided through such services. In the event that Merchant chooses to receive or use a 3rd Party Product or Service provided by Datacap, then the 3rd Party Product or Service shall be deemed to be a part of Datacap Software and related services and, accordingly, the 3rd Party Product or Service shall benefit from each and all of the provisions of these Datacap Software Terms of Use, as if it was a service provided directly to Merchant by the originator under this Agreement. By way of example, but not by way of limitation, the 3rd Party Product or Service shall benefit from all of the rights and restrictions set forth in Section 10 above. Moreover, in accordance with Section 10 (d) above, Datacap makes no representation, warranty or guaranty in relation to the 3rd Party Product or Service, and disclaims any liability for claims or loss incurred as a result of the use or loss of use of the 3rd Party Product or Service. Merchant hereby agrees to look solely to 3rd Party Product or Service originator in connection with the delivery, performance or termination of the 3rd Party Product or Service, as well as any service, warranty or other issue regarding the 3rd Party Product or Service, and agrees to comply with, and to be bound by, any and all terms of use or service published by 3rd Party Product or Service originator and applicable to Merchant. DATACAP DISCLAIMS ANY LIABILITY FOR CLAIMS OR LOSS INCURRED AS A RESULT OF THE USE OF ANY SUCH THIRD PARTY PRODUCT OR SERVICE. 

 

  1. Amendments.

 

Datacap may from time-to-time amend any provision of the Datacap Software Terms of Use. Datacap will provide email notice to Merchant’s Provisioning Agent (or to Merchant, if Merchant is billed directly by Datacap) of the amendment and, unless specified otherwise, the amended Datacap Software Terms of Use shall become effective at the start of the first billing cycle after Datacap has provided notice.

                

  1. Governing Law; Venue; Attorneys’ Fees; Injunctive Relief.

 

Merchant agrees that the transactions related to Datacap Software, including but not limited to the delivery of Datacap Software, will be deemed to have occurred in Pennsylvania. These Datacap Software Terms of Use will be governed by Pennsylvania law, without regard to its conflicts-of-law principles, and applicable federal law.

 

Except as otherwise expressly provided by applicable state law or regulation, Merchant agrees and consents to the jurisdiction and venue of the Court of Common Pleas of Bucks County (Pennsylvania, U.S.A.) and the U.S. District Court for the Eastern District of Pennsylvania with respect to any proceedings arising out of or in connection with these Datacap Software Terms of Use.

 

In the event that Datacap retains the services of outside counsel to enforce its right to collect fees owed to it or to collect sales and use taxes owed by Merchant, Datacap shall be entitled to recover reasonable legal fees, costs, and expenses from Merchant, including expert witness fees.

 

Merchant agrees that any breach or attempted breach of its obligations under Sections 1, 21, or 22 will cause irreparable harm to Datacap for which money damages would not be adequate, and Datacap shall be entitled to an equitable accounting of all earnings, profits, and other benefits arising from such violation, preliminary and permanent injunctive relief, specific performance to enforce its rights hereunder, in addition to any and all rights or remedies otherwise available at law or in equity or otherwise.

 

 

  1. Jury Waiver.

 

IN THE EVENT ANY CONTROVERSY OR CLAIM BETWEEN DATACAP AND MERCHANT SHALL ARISE IN ANY JUDICIAL OR LEGAL PROCEEDING,

EACH SUCH PARTY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES ITS RESPECTIVE RIGHT TO TRIAL BY JURY OF SUCH CONTROVERSY OR

CLAIM.

 

  1. Merchant Dispute Notification.

 

Merchant is responsible for the timely reconciliation of all issues related to Datacap Software. Merchant will promptly examine all statements relating to Merchant’s account and immediately notify its Provisioning Agent in writing of any errors, or notify Datacap if Datacap is charging fees directly to Merchant under this Agreement. Merchant’s written notice must include: (i) Merchant name; (ii) the dollar amount of the asserted error; (iii) a description of the asserted error. This written notice must be received by Merchant’s Provisioning Agent or by Datacap within thirty (30) days after Merchant received the periodic statement containing the asserted error, and the failure to do so will result in waiver by Merchant of the claim in its entirety.

 

  1. Notices; Consent to Electronic Communications.

 

Merchant confirms that it has the means to access the Internet through its own service provider and download or print electronic communications. Merchant agrees to the receipt of electronic communications by email or by the posting of such information by Datacap at one or more of Datacap’s sponsored websites, such as https://www.datacapsystems.com. Such communications may pertain to Datacap Software, the use of information Merchant may submit to Datacap, changes in laws impacting Datacap Software, or other reasons, such as amendment of the Datacap Software Terms of Use or privacy policy. In addition, all notices and other communications to Merchant may also be delivered by Datacap to Merchant either by email, FAX, overnight carrier or first class mail, postage or other charges prepaid, addressed and transmitted to Merchant using the current information contained in Merchant’s profile in the PSCS file build. Notices and other communications to Merchant’s Provisioning Agent shall be sent to such Provisioning Agent using the current information contained in such party’s profile in the PSCS file build. All notices and other communications by Merchant to Datacap shall be delivered by Merchant to Datacap by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by FAX or e-mail shall be deemed delivered when transmitted. Notice by overnight carrier shall be deemed delivered on the first (1st) business day after delivery to the carrier.

 

Notices to Datacap shall be addressed:

Datacap Systems

Attn: Datacap Software Agreement Administrator

100 New Britain Blvd

Chalfont, Pa 18914-1832

 

  1. Publicity.

 

Merchant agrees that Datacap may issue a press release or similar public announcement referencing Merchant as a customer of Datacap. Merchant also grants to Datacap a limited license to use Merchant’s and its affiliates’ names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for Datacap or its affiliates’ services.

 

  1. Consent to be Called.

 

MERCHANT HEREBY AUTHORIZES DATACAP TO SEND, AND MERCHANT CONSENTS TO THE RECEIPT OF, “SMS” (I.E., “TEXT”) OR VOICE ALERTS, FOR THE FOLLOWING DESIGNATED PURPOSES: (I) TO NOTIFY MERCHANT OF NEW PRODUCTS OR FEATURES OFFERED BY DATACAP; (II) TO NOTIFY MERCHANT THAT DATACAP IS TRYING TO REACH IT; (III) TO NOTIFY MERCHANT OF CUSTOMER SERVICE ISSUES; (IV) TO NOTIFY MERCHANT OF SERVICE OUTAGES; (V) TO PROVIDE MERCHANT WITH INFORMATION REGARDING ACCOUNT BALANCES, TRANSACTIONS, AND SIMILAR MATTERS; AND (VI) TO NOTIFY MERCHANT OF ANY MATTERS RELATING TO HIS, HER OR ITS ACCOUNT. MERCHANT UNDERSTANDS THAT HE, SHE OR IT WILL RECEIVE FUTURE SMS OR VOICE ALERTS FOR THE AFOREMENTIONED PURPOSES BY OR ON BEHALF OF DATACAP TO THE WIRELESS PHONE NUMBER PROVIDED BY MERCHANT AND, HAVING RECEIVED AND REVIEWED THESE DISCLOSURES, MERCHANT UNAMBIGUOUSLY AUTHORIZES DATACAP TO DELIVER OR CAUSE TO BE DELIVERED, AND AGREES TO RECEIVE, SMS AND VOICE ALERTS USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR AN ARTIFICIAL OR PRERECORDED VOICE. MERCHANT ACKNOWLEDGES THAT THE WIRELESS PHONE NUMBER PROVIDED IS IN THE NAME OF AND CONTROLLED BY MERCHANT, AS APPLICABLE, THAT MERCHANT’S CONSENT IS VOLUNTARY AND NOT REQUIRED (DIRECTLY OR INDIRECTLY) AS A CONDITION TO THE RECEIPT OF PRODUCTS OR SERVICES FROM DATACAP OR ITS AFFILIATED COMPANIES IN ACCORDANCE WITH THE DATACAP SOFTWARE TERMS OF USE, AND THAT MERCHANT HAS THE RIGHT TO WITHDRAW THIS CONSENT AT ANY TIME BY PROVIDING DATACAP WITH WRITTEN NOTICE OF SUCH WITHDRAWAL IN ACCORDANCE WITH THE DATACAP SOFTWARE TERMS OF USE.

 

  1. Assignment.

 

Merchant shall not assign or transfer its rights or obligations under these Datacap Software Terms of Use without the prior written consent of Datacap. Notwithstanding the foregoing, in the event of a merger or consolidation involving Datacap or the sale or transfer of all or substantially all of Merchant’s assets or equity interests, these Datacap Software Terms of Use shall be binding upon the surviving entity, in the case of a merger or consolidation, or the purchaser, in the case of a sale of Merchant’s assets. In addition, either party may assign these Datacap Software Terms of Use, in whole or in part, to an Affiliate. For purposes hereof, “Affiliate” means an entity under common control with, controlling or controlled by a party. Subject to the foregoing, these Datacap Software Terms of Use shall apply to, inure to the benefit of, and be binding upon the parties hereto and upon their permitted successors and assigns. The parties agree to disclose the existence of these Datacap Software Terms of Use and the foregoing provision to any prospective merger or acquisition party.

 

 

  1. Relationship of the Parties.

 

Merchants and Datacap are independent contractors and nothing in the Datacap Software Terms of Use shall make them joint venturers, partners, employees, agents or other representatives of the other party.

 

  1. Confidential Information.

 

For purposes of the Datacap Software Terms of Use, “Confidential Information” means Datacap’s confidential and proprietary information (whether Merchant knew or should have known of its confidential nature, and irrespective of whether Datacap marked it as confidential), including, but not limited to, Datacap’s: consultant relationships; data; designs; formulas; information; intellectual property; plans; pricing; procedures; processes; revenues; sales information; schedules; specifications; usage information; and vendor relationships. Merchant will not copy, disclose, modify, reproduce, or otherwise use Confidential Information (except as may be expressly authorized by the Datacap Software Terms of Use) without Datacap’s prior written consent, which consent may be conditioned, limited, or restricted in the sole discretion of Datacap.

 

The restrictions on disclosure in this section will not apply to Confidential Information: (i) for which there is reliable documentary evidence that: (A) Merchant knew it before it was disclosed; (B) Merchant developed it without use of the Confidential Information; (C) it is publicly known; or, (D) it was obtained from a third-party, who disclosed it without breaching its confidentiality obligations to Datacap; (ii) for which disclosure is required by law (provided that if a disclosure is required by law, Merchant will give Datacap prompt written notice of such requirement, permitting Datacap to seek a protective order or take such action it deems necessary, and provided further that in such case Merchant will only disclose the limited Confidential Information expressly required to be disclosed).

 

For the avoidance of doubt, at all times, all Confidential Information is the sole property of Datacap, even if its disclosure is authorized under this section, and all other restrictions in these Datacap Software Terms of Use will continue to apply to such Confidential Information.

 

  1. Non-Disparagement.

 

Merchant agrees not to disparage Datacap or its vendors, and promises to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of Datacap or its vendors.

 

  1. Survival.

 

All sections of the Datacap Software Terms of Use that by their nature should survive termination of Merchant’s use of Datacap Software will survive, including, without limitation, accrued rights to payment, indemnification obligations, warranty disclaimers, and limitations of liability.

 

  1. Export Law Assurances.

 

Merchant may not use or otherwise export or re-export the Datacap Software except as authorized by United States law and the laws of the jurisdiction in which the Datacap Software was obtained. In particular, but without limitation, the Datacap Software may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. By using the Datacap Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list. 

 

  1. Miscellaneous Provisions.

 

If for any reason a court of competent jurisdiction finds any part of these Datacap Software Terms of Use to be unenforceable, the remainder of these Datacap Software Terms of Use shall continue in full force and effect.

 

These Datacap Software Terms of Use constitute the entire agreement between Datacap and Merchant with respect to the license and use of Datacap Software and supersede and replace any and all other agreements regarding the subject matter hereof.

 

Any waiver by Datacap of any of its rights and remedies hereunder must be in writing to be effective and shall not be a waiver of any subsequent breach or additional breach. Datacap’s failure, neglect or delay to exercise any of its rights or remedies shall not be construed or deemed to be a waiver of those rights or remedies. Except as expressly set forth herein, Datacap’s exercise of any of its remedies will not be deemed an election of remedies and will be without prejudice to its other remedies under these Datacap Software Terms of Use or available at law or in equity or otherwise.

 

  1. Electronic Signature.

 

Merchant may become a party to, and become bound by, the Datacap Software Terms of Use by accepting it electronically over the Internet. This is done by clicking or entering “I Agree”, by providing an electronic form of signature or otherwise by affirmatively indicating acceptance or consent where requested on an electronic version of the Datacap document (any such method constituting an “Electronic Consent”). By providing such Electronic Consent, Merchant acknowledges that it has received and reviewed all applicable pages, terms and conditions of the Datacap Software Terms of Use, and it represents, warrants, consents and agrees as follows:

 

(a) The electronic application process allows Merchant to sign and agree to legally binding agreements online by providing its Electronic Consent;

 

(b) Merchant intends to use the electronic document process to provide its Electronic Consent;

 

(c) Merchant’s Electronic Consent is legally binding, and is governed by the Electronic Signatures in Global and National Commerce Act of 2000, and/or the Uniform Electronic Transactions Act governances (or an amended version thereof) in its state of residence, and Merchant agrees to be bound by these governances;

 

(d) The individual providing Electronic Consent on behalf of Merchant is authorized by Merchant to do so; and

 

(e) The Electronic Consent will be binding upon Merchant, and will not be construed by a court of law to have any less effect than a standard ink or paper signature.