Terms of Use

CW Pays Terms of Use

Effective Date: August 2, 2022

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SaaS Accounting App LLC and its affiliates (collectively, “CW Pays”, “we”, “us” and terms of similar meaning) provide the CW Pays software, its website www.CWPays.com (the “Site”), and all associated services and add-ons, including third-party services (collectively, the “CW Pays Services”) to you (the “Client”) subject to these terms and conditions of use (the “Terms”). Client can identify the specific CW Pays entity providing services to it in Client’s CW Pays Services Agreement (as defined below). The Terms apply to: (i) Client’s use of CW Pays Services; (ii) the use of CW Pays Services by third parties authorized by Client through Client’s CW Pays account to use CW Pays Services and Client User Content (as defined below); and (iii) the use by such authorized users of any additional software, hardware or other services provided, referred, or recommended by us or third parties as part of, or for use with, CW Pays Services.

 

Please read the Terms carefully before using CW Pays Services. By accessing, using or continuing to use CW Pays Services, Client agrees to be legally bound by the Terms and all terms, policies and guidelines incorporated by reference into the Terms. If Client does not agree with the Terms in their entirety, Client may not use CW Pays Services. In the event of any conflict between the Terms and the terms and conditions of a Client’s Sales Quote (as defined below), the Client’s Sales Quote shall govern and be paramount.

 

In the Terms, Client and its staff members to whom Client gives access to the Client’s CW Pays account are called “Subscribers”, and Client’s customers who use CW Pays Services (for example, to view or use CW Pays Services designed for use by those parties) are called “Customers”. Users of CW Pays Services, whether they are Subscribers or Customers, are called “Users”.

 

CW Pays reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline applicable to CW Pays Services, at any time upon thirty (30) days’ notice and in its sole discretion. If Client does not agree with the changes, Client must forthwith expressly advise CW Pays of same in writing and can cancel its Client account with CW Pays effective upon the expiry of the then current term of the Client’s CW Pays Services Agreement (as defined below). In such an event, until such expiry, the prior Terms will remain in force. Notwithstanding the foregoing, if Client renews its CW Pays Services Agreement past the then current term thereof, it shall be deemed to have accepted the then most current version of the Terms from and after the renewal date. Subject to the foregoing, any changes or modifications will be effective immediately upon the posting of same on the Site, and Client’s continued use of CW Pays Services after such time will constitute Client’s acceptance of such changes or modifications.

 

Client should from time to time review the Terms and any policies and documents incorporated therein to understand the terms and conditions that apply to Client’s use of CW Pays Services. The Terms will always show the “last updated” date at the top.

 

CW Pays Services are for Client’s own use only. Client may not resell, host, publish, lease or provide in any other way to anyone else, except as expressly permitted by CW Pays or under this Agreement. For the purposes of the Terms, the defined terms referenced below have the following meanings. Any capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Client’s Sales Quote.

 

“Effective Date” means the earlier of: i) the Go-Live Date and ii) the Outside Payment Date. “Go-Live Date” means the date that CW Pays Services are ready to go live in Client’s business. “Hardware” means the iPads and other related hardware technology required by Client to utilize CW Pays Services and acquired by Client from CW Pays, as detailed in the Sales Quote. “HPP Agreement” means an agreement between Client and CW Pays pursuant to which Client agrees to pay for the cost of any Hardware described therein over time. “Outside Payment Date” has the meaning set forth in Client’s Sales Quote. “Quote Created Date” has the meaning set forth in Client’s Sales Quote. “Sales Quote” means the agreement entered into by and between Client and CW Pays pursuant to which Client has agreed to obtain CW Pays Services from CW Pays. “CW Pays Services Agreement” means collectively Client’s Sales Quote, the Terms, the HPP Agreement (if any) and any other agreements entered into by and between CW Pays and Client relating to the provision of CW Pays Services to Client.

 

1.  Privacy Notice

 

Please refer to CW Pays’s Privacy Notice, available at www.CW Pays.co/privacy for information on how CW Pays collects, uses and discloses personally identifiable information of Users. By using CW Pays Services, Client agrees to our use, collection and disclosure of personally identifiable information in accordance with the Privacy Notice. Furthermore, as a Subscriber, Client agrees to establish and maintain a privacy policy that complies with local laws in Client’s jurisdiction and that is consistent with the CW Pays Privacy Notice. Client agrees that CW Pays may collect, maintain and use non-personally identifiable data obtained by it through the provision of CW Pays Services, including User Content, in aggregated form for its business purposes, and the improvement and enhancement of CW Pays Services, and Client grants CW Pays an irrevocable, perpetual, non-exclusive right to use such data for such purposes.

 

2.  Registration Data; Account Security

 

If Client registers for an account on CW Pays Services, Client agrees to (a) provide and maintain accurate, current and complete information as may be prompted by any registration forms on CW Pays Services (“Registration Data”); (b) maintain the security of Client password(s); (c) maintain and promptly update the Registration Data, and any other information Client provides to CW Pays, and keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data Client provides to CW Pays directly or through CW Pays Services. Client is responsible for all activity on Client’s CW Pays account, and for charges incurred by and through Client’s CW Pays account.

 

3.  Fees; Charges; Taxes

 

CW Pays shall commence charging the software license fees described in the Client’s Sales Quote on the Effective Date. Client shall pay CW Pays any fees specified in its Sales Quote, in accordance with the timing and currency specified in the Sales Quote. Overdue amounts shall accrue interest at a rate which is the lesser of: two percent (2%) per month or the maximum rate allowable by law. Client is responsible for all taxes applicable to the fees and charges in any applicable jurisdiction. All pre-paid license, subscription, or other fees (including professional services such as installation and training) are non-refundable and subject to any additional payment or other terms or conditions provided for in the Client’s CW Pays Services Agreement.

 

Professional services must be booked at least fifteen (15) days in advance. Payment is required prior to booking professional services. Cancellation or rebooking must be made a minimum of three (3) days prior to the date professional services are scheduled to be provided, failing which any rescheduling or cancellation will be subject to a one-hundred dollar ($100) change fee. If Client cancels or changes the dates of any scheduled professional services appointment, Client will be given a credit  (less change fee) for such services which must be used within sixty (60) days of the Effective Date, failing which the credit expires and constitutes non-refundable payment to CW Pays.

 

Except as expressly provided in the applicable Sales Quote, CW Pays reserves the right, exercisable at any time prior to the commencement ofany renewal term, to discontinue, during any such renewal term, any promotion or discount provided to Client on fees for CW Pays Services. In the event CW Pays chooses to exercise such right, the fees payable by Client for CW Pays Services during such renewal term and thereafter shall be CW Pays’s standard list prices for the applicable services in effect at the time of the applicable renewal. Any such change in fees will be communicated to Client by written notice at least thirty (30) days prior to the end of the then current term, and shall take effect upon the commencement of the renewal term, unless Client terminates the CW Pays Services Agreement by delivery of written notice to CW Pays within ten (10) days of receiving notice of such fee changes.

 

4.  Ownership, Copyright and Trademarks

 

The content made available by CW Pays through CW Pays Services, including all information, content, data, logos, marks, interfaces, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. Content provided by Users is called “User Content”. For example, data about its Customers that Client provides to CW Pays and, data about its payments, menu, or operations that Client provides to CW Pays or is accessible by CW Pays through CW Pays Service is User Content of that Client, and Content that a User enters into any CW Pays database is User Content of the User. User Content is that User’s property and may only be utilized by CW Pays as expressly authorized herein. Without restricting the generality of the foregoing, it is expressly agreed that CW Pays is granted a limited license to utilize any User Content as necessary to provide and perform CW Pays Services, including to provide support to Users. Other than the User Content, all Content and all software available on CW Pays Services or used to create and operate CW Pays Services is the property of CW Pays or its licensors, and is protected by United States and international patent, trademark, and copyright laws, and all rights to CW Pays Services, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in CW Pays Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation of them by CW Pays. Throughout the  term of CW Pays Services Agreement, CW Pays may utilize Client’s business name, Client’s logo and Client’s other registered or unregistered trademarks, trade names, brands and/or service marks, on the Site and in other CW Pays promotional material, to promote the business of CW Pays. CW Pays may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) Client provides or has provided to CW Pays regarding CW Pays Services. This applies to Feedback provided to CW Pays at any time in any format. Client assigns all intellectual property rights in Feedback to CW Pays immediately upon communication of such Feedback to CW Pays or its representatives. CW Pays may use Feedback for any purpose without compensation or attribution to Client and Client forever waives and surrenders any and all rights in Feedback. If Client authorizes third parties to access Client’s User Content through CW Pays Services, Client agrees that we are permitted to provide to them the User Content, and also agrees that we have no responsibility or liability for their use of such User Content. Any such access shall be governed by any  applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party. Without limiting the generality of the foregoing, Client is responsible for all business continuity, data loss, business interruption, or other risks that may arise out of Client’s use of CW Pays Services. CW Pays denies, disclaims, and waives any liability for any loss that may occur arising through use of CW Pays Services, including, but not limited to, loss of data, business interruption, incorrect calculation of any amount, including taxes or amounts due from Client’s Customers, or loss of Client’s goodwill. CW Pays Services are provided on an “as is” basis. Client acknowledges and accepts all risks associated with using CW Pays Services and releases CW Pays from any claim or liability in relation thereto. Client’s User Content is Client’s responsibility. We have no responsibility or liability for it, or for any loss or damage Client’s User Content may cause to Client or other people.

 

5.  Client Limited License of Client User Content to CW Pays

 

We do not claim any ownership interest or rights in Client User Content except as provided for under the Terms, but we do need the right to use Client User Content to the extent necessary to provide CW Pays Services, now and in the future. Therefore, with respect to any User Content posted to, distributed or otherwise accessible through CW Pays Services, Client (a) grants CW Pays a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, i) in any manner as may be necessary to provide CW Pays Services, ii) for any purposes for which CW Pays Services from time to time use such User Content, and iii) to ensure the security of CW Pays Services, systems and technology; (b) represents and warrants that (i) Client owns and controls all of the rights to the User Content Client posts, distributes or is made otherwise accessible to CW Pays by Client through CW Pays Service, or Client otherwise has the lawful right to post and distribute that User Content, to or through CW Pays Services, and (ii) the use and posting or other transmission of such User Content does not violate the Terms and will not violate any rights of or cause injury to any person or entity.

 

If Client’s User Content is intended for the use of other Users, Client also grants us and our partners a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of CW Pays Services in accordance with all applicable privacy laws and regulations. These licenses from Client are non- exclusive because Client has the right to use Client User Content elsewhere. They are royalty-free because we are not required to pay Client for the use of Client User Content on CW Pays Services. They are transferable because we need the right to transfer these licenses to any successor operator of CW Pays Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of CW Pays Services does this to Client User Content when it processes it for use in CW Pays Services.

 

In addition to the foregoing, Client agrees that CW Pays may compile, collect, copy, modify, publish and otherwise use User Content in an aggregated fashion (excluding any parts of the User Content that represents personally identifiable information of an individual) (“Aggregated Anonymous Data”) for any lawful purpose. CW Pays shall be the owner of the Aggregated Anonymous Data, and may, without limitation, use the Aggregated Anonymous Data to analyze, improve, support and operate CW Pays Services, combine it with data from other sources, share it with third parties and otherwise use it for any lawful business purpose, both during the currency, and after the termination, of the Client’s CW Pays Services Agreement, including without limitation, in order to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by CW Pays, Subscribers and other third parties.

 

Notwithstanding the foregoing, it is expressly acknowledged and agreed that any and all Customer information and data, including personally identifiable information, of any Customer of Client which is collected by CW Pays through the use by the Customer of CW Pays’s reservations, waitlist and online ordering services and Gift Card Services (as defined below) (collectively, the “RWOO Customer Data”) shall be the sole property of CW Pays and not Client. To the extent allowable by applicable law and authorized by the Customer in question, CW Pays may share RWOO Customer Data with Client, solely for the purpose of Client fulfilling Customer reservation, waitlist, online ordering, Gift Card Services or other requests and for no other purposes. Client agrees to utilize all RWOO Customer Data solely for the purposes for which the data was provided to Client, and Client agrees to at all time comply with applicable privacy and other laws associated with the handling and use of such RWOO Customer Data.

 

6.  Our Limited License of Content to Client

 

CW Pays grants Client a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access CW Pays Services and to view, copy and print the portions of the Content available to Client through CW Pays Services for the limited purpose of using CW Pays Services as contemplated by Client’s CW Pays Services Agreement. Such license is subject to the Terms, and specifically conditional upon the following: (i) Client may only view, copy and print such portions of the Content for Client’s own use as contemplated by CW Pays Services; (ii) Client may not modify or otherwise make derivative works of the Content, or reproduce, distribute or display the Content except as expressly permitted in the Terms; (iii) Client may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) Client may not use any data mining, robots or similar data gathering or extraction methods; and (v) Client may not use CW Pays Services or the Content other than for their intended purpose. Client may not assist any third party in carrying out these prohibited activities. When Client uses CW Pays Services to publish any menu, online ordering or similar functionality, a CW Pays logo or similar attribution with link to CW Pays.co and CW Payspos.com will be installed. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of CW Pays is strictly prohibited and may result in the termination of the license granted in this section without notice, and immediate termination of the Client’s CW Pays Services Agreement and Client account with us. Any such unauthorized use may also violate applicable laws, including without limitation patent, copyright and trademark laws. Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this section is revocable by CW Pays at any time without notice or warning. Client represents and warrants that its use of CW Pays Services and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law or regulation.

 

7.  Using CW Pays Services and Marketing Services

 

CW Pays Services may include services whereby Client, developers, or third parties hired by Client use CW Pays Services to market Client’s products and services. This section contains terms and conditions applicable to Client’s use of CW Pays Services for that purpose (a “CW Pays Marketing Initiative”). If Client procures a third party to develop a CW Pays Marketing Initiative for Client, this section applies to Client and its use of the CW Pays Services, and Client is responsible for the third party’s compliance with this section to the same extent as though Client were developing the CW Pays Marketing Initiative itself. CW Pays grants Client a limited, revocable, non-exclusive, non-sublicensable license to use CW Pays Services as provided by CW Pays, in the manner permitted by the Terms. Such license does not license any other Content to Client. If Client wishes to use Client’s CW Pays Marketing Initiative to display or deliver any Content provided to us by a Subscriber, Client must obtain the prior agreement of that Subscriber to that use, by obtaining a license from the Subscriber, for Client’s use of that Content. This limited license is subject to the usage restrictions set forth in Section 6 above.

 

8.  Hardware for CW Pays Services

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CW Pays Services are intended to operate together with dedicated hardware. To minimize the risk of security breaches and technology malfunctions, Client agrees to use dedicated hardware for CW Pays Services. For example, Client will ensure that Client’s employees do not install apps on the iPads; do not use the iPads to surf the web, and such. If Client does not use dedicated hardware, we reserve the right to not support Client’s CW Pays Services as the other applications may cause conflicts or performance issues with CW Pays Services.

 

Client acknowledges and agrees that, as a condition of receiving CW Pays Services, any hardware deployed by Client to utilize CW Pays Services shall be enrolled in the CW Pays portal, and CW Pays shall have the right to access and control any such hardware through the CW Pays portal for any and all the purposes related to providing the CW Pays Services to Client, and for such other purposes as are expressly set forth herein. Client shall take any and all such steps as may be necessary in order to grant such access and control to CW Pays as CW Pays may require, in its sole discretion. 

 

 

9.  Using CW Pays Gift Card Services

 

CW Pays Services may include certain gift card services (the “Gift Card Services”) which support the issuance and management of gift cards to Customers. If Client offers gift cards to its Customers through Gift Card Services, Client (not us) is the issuer and administrator of such gift cards, which must: (i) not be reloadable; (ii) not be used for payment for a credit account; (iii) be “closed loop” gift cards that may only be used for purchase of goods and services from Client and no other Client or company; and (iv) not assess or impose any fees or charges on the issuance, activation, maintenance, or redemption of gift cards. Client further agrees: (i) not to issue a gift card with a value in excess of one-thousand dollars ($1,000) or add value to a previously issued gift card so that the total funds loaded on a gift card in any single day exceed one-thousand dollars ($1,000); (ii) not to issue more than one-thousand dollars ($1,000) in gift cards to any single person in any one day; (iii) not to impose an expiration date on the gift card, and any unused balance of a gift card must remain available to the holder of the gift card until fully redeemed, even if Client’s CW Pays account is closed, suspended, or terminated; and (iv) not to provide a cash refund from or cash back on gift cards except to the extent required by applicable law. When issuing a gift card, Client must clearly disclose on the gift card itself, and on any packaging and promotional materials associated with the gift card, any restrictions, limitations and terms and conditions in respect of the use of such gift card, as well as contact information for the purpose of obtaining information about the gift card, including any remaining balance. All gift cards and the funds associated with gift cards are Client’s sole property. In addition to Client’s other indemnification obligations under the Terms, any liability for the use or misuse of Client’s gift cards, including any unfunded gift card balance or fraudulent activity, unauthorized use or losses related to a gift card or Customer, and any third party claims arising from or relating to Client’s gift cards, are Client’s sole responsibility. Client is solely responsible for compliance with federal, provincial/state, territorial, and local laws, rules and regulations that apply to its gift cards, including but not limited to notice, disclosure requirements and language requirements, expiration dates and fees, refunds, unclaimed property or escheat requirements (such as tracking, reporting, and remittance of unclaimed property balances in all states), and customer service for buyers and holders of gift cards. Client represents and warrants that the balance associated with its gift cards will be at all times appropriately funded by deposits placed by the Customers with Client in connection with such gift cards in an amount that is no less than 100% of the total amount of currency represented as active and available to Customers of the current day’s gift card balance. Client will be responsible for overseeing and managing such funding, and responsible and liable for any failure of the gift cards to be fully funded.

 

10.  Other Restrictions on Use of CW Pays Services

 

Any party’s use of CW Pays Services is also subject to the following restrictions. Client (alone or by assisting or enabling any other party) may not: (i) interfere or attempt to interfere in any manner with the proper workings of CW Pays Services, or create or distribute any CW Pays Marketing Initiative that adversely affects the functionality or performance of CW Pays Services or adversely impacts the behavior of other applications using CW Pays Services; (ii) misrepresent Client’s identity or intentions when communicating with us in relation to CW Pays Services, use the developer credentials licensed to a different individual or entity, allow Client credentials to be used by others, or mask Client’s usage of CW Pays Services; (iii) use CW Pays Services in association with, or as a component of, any website that in the sole discretion of CW Pays is determined to be obscene or otherwise commercially inappropriate; (iv) use CW Pays Services for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code; (v) use CW Pays Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations; (vi) replicate, in whole or in part, the “look and feel” of CW Pays Services or portion of them; (vii) use a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between CW Pays Services and Client’s CW Pays Marketing Initiatives among users; (viii) disparage or otherwise negatively represent CW Pays Services or do anything that could result in damage or dilution to the goodwill of CW Pays and its brand; (ix) use CW Pays Services for any application or service that attempts to replace or replicate the essential user experience or functionality of any or all CW Pays Services; (x) reverse engineer, decompile or otherwise attempt to extract the source code of CW Pays Services or any part thereof; (xi) circumvent or render ineffective any IP address-based functionality or restriction imposed by CW Pays Services; (xii) circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect; (xiii) build conversion functionality that converts Content from the Service to a competing or alternative product or service; or (xiv) at any time when Client is operating a CW Pays Marketing Initiative, solicit, interfere with or endeavour to entice away from us any of our Subscribers or other Users. Client agrees to carefully monitor Client’s use of CW Pays Services and ensure that it remains within reasonable operational limits for both Client’s own server capacity and for ours, when applicable. CW Pays has no responsibility to any person for any use or misuse of any User Content obtained through CW Pays Services. If Client is a Subscriber, Client should consider carefully whether Client wishes to give a CW Pays Marketing Initiative services developer access to Client User Content through CW Pays Services. If Client wishes to revoke access to Client User Content through CW Pays Services, Client should change Client’s CW Pays Services password or revoke authorization of the CW Pays Marketing Initiative to Client Content. CW Pays may monitor Client use of CW Pays Services for any reason, including but not limited to: quality assurance, improvement of CW Pays products and services, and verification of Client compliance with the Terms. Client shall not interfere with such monitoring or otherwise obscure from CW Pays any aspect of Client use of the CW Pays Services. Client acknowledges that any use by us of Client’s CW Pays Marketing Initiative for such purpose will not constitute our agreement to any terms of use Client purports to require us to comply with in such use.

 

11.  Using Social Media Areas and CW Pays Services

 

CW Pays Services may include discussion forums, location-based services, menu, pricing, and establishment information, bulletin boards, review services or other forums in which Client or third parties may post reviews or other content, messages, materials or other items (“Social Media Areas”). If CW Pays provides such Social Media Areas, Client is solely responsible for Client’s use of such Social Media Areas and uses them at its own risk. User Content submitted to any Social Media Areas will be considered non-confidential. Client agrees not to post, upload to, transmit, distribute, store, create or otherwise publish on Social Media Areas any of the following: (i) any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (ii) content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (iii) content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (iv) content that impersonates any person or entity or otherwise misrepresents Client’s affiliation with a person or entity; (v) unsolicited promotions, political campaigning, advertising or solicitations; (vi) private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use; (iv) viruses, corrupted data or other harmful, disruptive or destructive files; (v) content that is inaccurate, misleading, or unrelated to the topic of the Social Media Area(s) in which such Content is posted; or (vi) content that, in the sole judgment of CW Pays, is objectionable or which restricts or inhibits any other person from using or enjoying the Social Media Areas or CW Pays Services, or which may expose CW Pays or its users to any harm or liability of any type. CW Pays has a “zero-tolerance” policy towards unauthorized marketing and spam: Client may not use the Social Media Areas or CW Pays Services generally to send commercial or other messages to any third party if those messages are not solicited, authorized or welcomed by the third party, and in Client’s use of CW Pays Services, Client must comply with all applicable laws, including laws that apply in any jurisdiction to spam and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices. Any use of the Social Media Areas or other portions of CW Pays Services in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of Client’s rights to use the Social Media Areas and/or CW Pays Services.

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12.  Providing a Reliable and Secure Service

 

We put a great deal of effort into ensuring that CW Pays Services operate on a reliable basis and where applicable provide a secure environment for Client’s data. We use what we believe to be “best-of class” infrastructure and hosting services and  security technologies and services that we believe provide Client with a secure and safe environment. However, no system is perfectly secure or reliable, the Internet, hardware, power sources, and local servers and associated technology are inherently unreliable at times and can be an insecure medium, and the reliability of hosting services, internet intermediaries, Client’s internet service provider, servers, databases, access to or use of financial or business records, and other service providers cannot be assured or assumed. When Client uses CW Pays Services, Client acknowledges Client understands and accepts these risks, and Client accepts sole responsibility for choosing to use a technology that does not provide perfect security or reliability.

 

13.  No Responsibility for Third-Party Material

 

CW Pays Services may contain links or references to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, including third party suppliers, payment processors and other payment intermediaries that Client may use in connection with Client’s use of CW Pays Services. Client uses links to Third-Party Sites and any Third-Party Content or service provided there, at Client’s own risk. CW Pays makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in CW Pays Services of a link to a Third-Party Site or Third-Party Content does not imply CW Pays’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. CW Pays accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or websites linking to CW Pays Services. When Client leaves CW Pays Services, our Terms and policies no longer govern. Client should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation Client feels necessary or appropriate before proceeding with any transaction with any third party. The provider of any third-party service is solely responsible for that third-party service, the content therein, any warranties to the extent that such warranties have not been disclaimed, any training, support or maintenance for the third-party services, and any claims that Client or any other party may have relating to that third-party services or Client’s use of that third-party service. Client acknowledges that: (i) Client is purchasing the license toeach third-party service from the provider of that third-party service; (ii) CW Pays is not acting as agent for the provider in providing each such third-party services to Client; (iii) CW Pays is not a party to the license between Client and the provider with respect to that third- party services; and (iv) CW Pays is not responsible for that third-party services, the content therein, or any warranties or claims that Client or any other party may have relating to that third-party services or Client’s use of that third-party services. Client acknowledges and agrees that CW Pays is a third-party beneficiary of the End User License Agreement for each third-party services, and that, upon Client’s acceptance of the terms and conditions of the license to any such third-party services, CW Pays will have the right (and will be deemed to have accepted the right) to enforce such license against Client as a third party beneficiary thereof.

 

14.  Advertisements and Promotions

 

CW Pays may run advertisements and promotions of third parties on CW Pays Services. Client’s business dealings or correspondence with, or participation in promotions of, advertisers other than CW Pays, and any terms, conditions, warranties or representations associated with such dealings, are solely between Client and such third party. CW Pays is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on CW Pays Services.

 

15.  Warranty Disclaimer

 

CW Pays Services and any third-party services are provided to Client on an “as is” basis without any warranties from CW Pays of any kind, either express or implied. CW Pays expressly disclaims all other warranties, express or implied, including without limitation implied warranties of Clientability, fitness for a particular purpose, title and non-infringement. CW Pays does not represent or warrant that CW Pays Services are accurate, complete, reliable, current or error-free. CW Pays Services and access to data may be interrupted or unavailable at any time and Client accepts all risks associated with such unavailability or interruption. Client should establish other systems to ensure business continuity and to ensure the accuracy or reliability or any business, financial or accounting data generated by the use of CW Pays Services or otherwise stored or accessed through CW Pays Services. While CW Pays attempts to make Client’s access to and use of CW Pays Services safe, CW Pays does not represent or warrant that the CW Pays Content, the third-party services or CW Pays Services are free of viruses or other harmful components or will be available without interruption or error.

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16.  Limitation of Liability; Indemnity

 

Client waives and shall not assert any claims or allegations of any nature whatsoever against CW Pays, its sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to Client’s use of CW Pays Services or any third-party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless Client or any third party from any claim or allegation arising from Client’s use or other exploitation of any third-party services or CW Pays Services. Without restricting the generality of the foregoing, CW Pays has no liability whatsoever with respect to any Customer’s use of services provided by Client. Client is solely responsible and liable in all respects to the Customer with regards to fulfilling any reservations or waitlist requests with Client made through CW Pays Services, or any online orders placed with Client or any Client gift cards purchased through Gift Card Services, and Client shall indemnify, defend or hold harmless the Released Parties from any claim or allegation of a Customer arising from or relating to any such reservations or waitlist requests with Client, any such online orders placed with Client or such Client gift cards. In addition, Client is solely responsible for establishing policies and practices regarding payments (including prepayments) for reservations, waitlist requests and online orders or fees or costs incurred by Customers who fail to utilize a booked reservation or waitlist request. It shall be Client’s responsibility to prominently display and disclose any and all such policies and practices to the Customer. Client uses CW Pays Services completely at Client’s own risk. Client agrees that this is fair and reasonable.

 

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER CW PAYS NOR ANY OTHER RELEASED PARTY SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF ACCESS TO OR USE OF DATA OR LOSS OF GOODWILL, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE ANY OR ALL CW PAYS SERVICES OR ANY THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM CLIENT’S RELIANCE ON CW PAYS SERVICES OR ANY THIRD-PARTY SERVICES OR OTHER INFORMATION OBTAINED FROM CW PAYS OR ANY OTHER RELEASED PARTY OR ACCESSIBLE VIA CW PAYS SERVICES OR ANY THIRD-PARTY SERVICE, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DATA OR EMAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO CW PAYS OR ANY OTHER RELEASED PARTY’S RECORDS, PROGRAMS OR SERVICES. In no event shall the aggregate liability of CW Pays, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of CW Pays Services or any third-party services exceed any compensation paid by Client for access to or use of CW Pays Services for the three (3) months immediately prior to the date of any claim. Client shall defend, indemnify and hold harmless CW Pays and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of Client’s use of CW Pays Services or any third-party services and from the use CW Pays Services or any third-party services by any person to whom Client gives access to Client account (including asstaff), including any claims made by any person that any of Client’s User Content infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event CW Pays claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction.

 

17.  Communications

 

Notices that we give Client (other than notice of amendment of the Terms, which is discussed in the introduction of the Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email Client or telephone Client at the contact information Client provided at time Client entered into the CW Pays Services Agreement (as same may have been updated by Client from time to time). Or we may post a notice to Users in the dashboard area of Client’s account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is Client’s responsibility to periodically review the Site for notices. Client agrees to keep all Registration Data current and up to date. Subject to the Privacy Notice, if Client sends CW Pays or posts on Social Media Areas any information, ideas, inventions, concepts, techniques or know-how (“User Submissions”), for any purpose, including the developing, manufacturing and/or marketing or products or services incorporating such information, Client acknowledges that CW Pays can use without limitation the User Submissions without acknowledgement or compensation to Client, and Client waives any claim of ownership or compensation or other rights Client may have in relation to the User Submissions. We actively review User Submissions for new ideas. If Client wishes to preserve any interest Client might have in Client User Submissions, Client should not post them or send them to us.

 

18.  Applicable Law and Venue

 

Client and CW Pays both benefit from establishing a predictable legal environment in regard to CW Pays Services. Therefore, Client and CW Pays explicitly agree that all disputes, claims or other matters arising from or relating to Client’s use of CW Pays Services or any third-party services shall be exclusively governed by the laws of South Carolina and the federal laws of United States applicable therein and the courts sitting at Spartanburg, South Carolina. The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to the CW Pays Services Agreement. Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving CW Pays and arising out of or relating to (a) the Terms; (b)  CW Pays Services or any associated third-party services; (c) oral or written statements, advertisements or promotions relating to CW Pays Services or any associated third-party services; or (d) the relationships that result from CW Pays Services or any associated third-party services (collectively, a “Claim”), will be referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Spartanburg, South Carolina in accordance with the South Carolina Uniform Arbitrations Act. Arbitration can be initiated by either party delivering to the other party a written notice of arbitration invoking this provision. The arbitrator’s authority is limited to claims between Client and us alone. Claims may not be joined or consolidated unless Client and we consent in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority. Except where prohibited by applicable law, Client waives any right Client may have to commence or participate in any class action against CW Pays related to any Claim and, where applicable, Client also agrees to opt out of any class proceedings against CW Pays. Without limiting the foregoing, Client and CW Pays will not have the right to participate in a representative capacity or as a member of any class pertaining to any Claim or other matter related to the CW Pays Services Agreement. If Client has a Claim, Client should give written notice of arbitration by registered mail to CW Pays’s head office. If CW Pays has a Claim, it will give Client notice of arbitration at Client’s address provided in Client’s Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under South Carolina Uniform Arbitrations Act in effect on the date of the notice in the State of South Carolina. To the extent arbitration as described above is prohibited by applicable law, Client agrees that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Spartanburg, South Carolina. Client consents to the personal jurisdiction of such courts over Client, stipulates to the fairness and convenience of proceeding in such courts and submits to their exclusive jurisdiction, and covenants not to assert any objection to proceeding in such courts.

 

Notwithstanding the foregoing, CW Pays shall be entitled, at its election, to apply to a court of competent jurisdiction: (i) for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of the CW Pays Services Agreement and CW Pays’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trademarks, and other proprietary material of CW Pays or its suppliers or licensors; and (ii) to collect any outstanding amounts that Client owes to CW Pays. With respect to Client’s use of CW Pays Services Client, Client is responsible for compliance with all local laws applicable to Client and Client’s use of CW Pays Services and Client agrees to indemnify CW Pays and the other Released Parties for Client’s failure to comply with any such laws.

 

 

19. Term and Termination/Modification of License and Site Offerings

 

The term of the CW Pays Services Agreement shall commence on the Quote Created Date and shall continue for such number of months following the Effective Date as is specified in the Sales Quote beside the heading “Initial Term” (the “Initial Term”). Upon expiration of the Initial Term and unless otherwise stated in the Sales Quote, the term of the CW Pays Services Agreement will automatically renew for a period equivalent to the period of the Initial Term unless terminated by Client or CW Pays by delivery of written notice to the other party at least thirty (30) days prior to the end of the then current term. Unless otherwise provided, CW Pays Services and access to Content are purchased as subscriptions.

 

Except as otherwise expressly set forth herein, Client may not terminate this Agreement prior to the expiration of the then current term. Notwithstanding any provision of the Terms, CW Pays reserves the right, without notice and in its sole discretion, without any liability to Client to (a) terminate Client’s license to use CW Pays Services, or any portion thereof (including any use of any third-party services) and the rights of any third party authorized by Client to access Client’s CW Pays account and User Content through CW Pays Services; (b) block or prevent Client’s future access to and use of all or any portion of CW Pays Services or Content (including any use of any third-party services) and the rights of any third party to which Client has granted access to Client’s CW Pays account and User Content through the CW Pays Services; (c) change, suspend or discontinue any aspect of CW Pays Services or Content; and (d) impose limits on CW Pays Services or Content. Client’s sole remedy in such circumstances shall be limited to and not exceed the return of the pro rata amount of any pre-paid fees applicable to the balance of the term of any then current subscription period.

 

When Client’s CW Pays account is terminated, Client’s User Content will, shortly thereafter, cease to appear on CW Pays Services, except for User Content submitted to Social Media Areas, which may remain on the Social Media Areas after termination. CW Pays may also retain an archival copy of Client’s User Content after termination, and Client hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes. If the CW Pays Services Agreement expires or terminates for any reason, Sections 4, 10 - 20, any representation or warranty Client makes in the Terms, and any other term of the Terms that by its nature is ongoing, shall survive indefinitely.

 

20. Default

 

In the event that Client defaults under any obligations owed to CW Pays under the Client’s CW Pays Services Agreement, in addition to any and all other rights and remedies which have in law or in equity, CW Pays may terminate the Client’s CW Pays Services Agreement, in which event, (i) if Client was provided with an Incentive (as disclosed in the Client’s Sales Quote), Client shall be liable to repay, and shall forthwith repay to CW Pays, the entire amount of the Incentive; and (ii) Client shall be liable to pay, and shall forthwith pay to CW Pays, the entire amount of any software license fees, hardware fees or payments and other amounts which would have been payable by Client to CW Pays during the balance of the then current term of the Client’s CW Pays Services Agreement, had the said agreement not been terminated.

 

In addition to the foregoing, in the event that Client defaults under any obligations owed to CW Pays under the Client’s CW Pays Services Agreement, it is expressly agreed that (a) if Client is a party to an HPP Agreement, throughout the term of the HPP Agreement, CW Pays shall maintain the right to remotely disable any iPads which form part of the subject matter of the HPP Agreement; and (b) if the default occurs during the Initial Term and the Client was provided an Incentive for hardware (as disclosed in the Client’s Sales Quote), CW Pays shall maintain the right to remotely disable any iPads which form part of the subject matter of the Client Services Agreement.

 

21. Miscellaneous

 

If any provision of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. CW Pays may assign any or all of its rights hereunder to any party without Client’s consent. Client is not permitted to assign any of Client’s rights or obligations hereunder without the prior written consent of CW Pays, and any such attempted assignment will be void and unenforceable. The CW Pays Services Agreement constitutes the entire agreement between Client and CW Pays regarding Client’s use of CW Pays Services or any associated third-party services, and supersedes all prior or contemporaneous communications whether electronic, oral or written between Client and CW Pays regarding Client’s use of them. Client has reviewed, understood and accepted the terms and conditions set forth in the CW Pays Services Agreement and has either consulted with legal counsel prior to its execution or has knowingly forgone its right to consult with legal counsel prior to such execution. The parties confirm that it is their wish that the Terms, as well as any other documents relating to these Terms, including notices, have been and shall be drawn up in the English language only.