S4Vision Terms and Conditions
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company (Data Systems Inc. “S4”) will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Expectation in Appendix B. As part of the registration process, Company reserves the right to refuse registration of, or cancel account names it deems inappropriate.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Customer 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, servers, software, antivirus software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer also represents that the information contained in the transaction data is provided by a PCI version of Customers point of sale system.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data[, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) 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 Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month or quarter must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Service.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the order form, web site, or agreed upon deal shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
7.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. SECURITY AND VIRUSES.
9.1 Customer acknowledges that the security and protection of the POS System and data, including protections against unauthorized access, is solely and entirely Customers responsibility. Customers must secure and maintain virus and spyware protection software, which may include, but is not limited to firewalls, passwords, physical security, access control policies, and the like. Support or services necessitated by computer viruses, or by any failure or breach of Customers security to Customer’s POS System or data, including without limitation, damage caused by hackers or persons lacking authorized access, are not covered under this Agreement, and will be supplied by Company only upon Customer’s request, on a reasonable efforts basis with mutually agreeable conditions and on a time-and-materials basis. Customer waives any claims hereunder against Company, to the extent arising from Customer’s failure to have or maintain current virus, malware or spyware protection. Customer acknowledges that credit card providers, banks, and credit card processing companies implement and require specific policies in conjunction with their cards and services. Customer shall be solely responsible for compliance with all policies, rules, regulations, and procedures required by the credit card companies, bank, and/or processors Customer elects to accept or utilize.
10. MISCELLANEOUS
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Nebraska without regard to its conflict of laws provisions.
Appendix A
S4Vision Transaction Data Privacy Statement
S4 is committed to protecting the privacy of its In S4Vision program users. The information below outlines S4’s principles for the responsible management of transaction log information.
General Information
S4 receives transaction log data from Customers participating in S4Vision services for the benefit of the Customer. Customer grants S4 the right to use the collected data on behalf of the Customer. Data Systems, Inc. ("S4") will not use or be permitted to use, share, advertise or disseminate store-specific point of sale ("POS") information collected for any other purpose.
Technical Information
S4Vision operates off of the store’s transaction data which is collected, encrypted and submitted to the data center utilized by S4 ("S4 Data Center") via an FTPS scheduler in regular intervals and following the POS day-end procedure. S4Vision Customers are required to have a supported PCI compliant POS system, a High-speed internet connection, and the approval for the secure FTP transmission software to be installed, and which will be provided, to upload transaction log data. No other hardware or software is necessary.
If transaction log data fails to transmit to the S4 Data Center, the system routines will attempt retries of the transmission the following day(s). If repeated transmission failures occur, an approved S4 representative will notify the Customer either via an alert on the S4Vision app, email or phone of the problems and initiate a resolution.
S4 will not be held responsible for missing data due to a failure of the POS end-of-day processing, nor any disruption of web service or other communication mechanisms. Ultimately the Customer is responsible for the creation of valid transaction data and maintaining an active communication channel to the S4 Data Center.
Disclaimer
S4 will not be held responsible for the preservation of data or its accuracy beyond its usefulness for the S4Vision Service.
Ownership and Confidentiality of Customer Data
All data and derived analytics generated by the S4Vision shall be the property of S4. S4 may analyze, assign or utilize S4Vision data for the generation of business information and other useful purposes. Customer shall own all data generated by its POS system and its loyalty programs.
S4 will not release, any collected POS information to anyone without the express written consent of the Customer, except in an aggregated form eliminating any reference to specific Customer’s stores. Written approval from the Customer is required before any data associated with a specific Customer can be released in any form. It will be at the Customer’s discretion whether this is a one-time blanket approval covering all future releases until the approval is revoked, or if approval will be required at each instance where Customer’s specific data is used.
With respect to customer credit card and payment/debit card account number data S4Vision users will have PCI compliant POS/EFT software solutions in place which will prohibit the transmission of sensitive customer cardholder data (via transaction data) to the facilities. S4Vision requires Customers to be on a PCI compliant POS release prior to any software being installed at the retail locations.
S4 will restrict internal access to those employees and contractors with a “need to know” who have agreed in writing to be bound by a corporate non-disclosure policy that encompasses protection of confidential information to the same extent as set forth herein.
Appendix B
Service Level Expectations
S4Vision is heavily dependent on POS data to help the retailer. Missing data can impact the accuracy of the solution.
S4 commits to 99.5% of transfer success of daily information. S4Visoin data will be as complete as possible based on normal working conditions that exclude POS End of Day problems generating a Tlog for daily sales, and store to S4 Data Center network unavailability that could be cause by mis configured firewalls or ISP internet failures.
S4 commits to having the S4 Data Center available 99.5% of the time in any calendar quarter, excluding scheduled or emergency maintenance events in which users will be notified via email or app messages.
If S4 fails to automatically process for two consecutive business days S4 will open an investigation to the cause and communicate the issue to the customer. If the issue is resulting in services not performing provided from S4 will result in meetings between the Customer and S4 to discuss resolution to the matter. Should this occur S4 will not charge the Customer for the daily file that was not processed on schedule excluding POS End of Day problems generating a Tlog for daily sales, and store to S4 Data Center network unavailability that could be cause by mis configured firewalls or ISP internet failures.