Terms of Use for the HPS Hosted Platform

Last Updated May 1, 2013

These Terms of Use ("Terms of Use") establish the terms and conditions under which Heartland Payment Solutions, Inc. ("HPS") (of which Educational Computer Systems, Inc. is a wholly owned subsidiary) will provide access to the Hosted Platform (as defined below) to those customers (each a "Customer") who have executed the Heartland Payment Solutions, Inc. Master Hosted Platform and Services Agreement (the "Agreement"). These Terms of Use are incorporated by reference into the Agreement and are made an integral part thereof. Provision of the Hosted Platform shall constitute one of the Services provided by HPS under the Agreement. With respect to Customer's access or use of Hosted Platform and Customer's access to the Hosted Platform, any conflict between the terms and conditions set forth in these Terms of Use and the Agreement shall be controlled by the terms and conditions set forth in these Terms of Use. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Agreement. HPS reserves the right to amend these Terms of Use by posting a revised set of Terms of Use on this site. These Terms of Use were last revised on the date set forth above. If Customer uses the Hosted Platform after an amended Terms of Use has been posted, Customer will be deemed to have agreed to such amended Terms of Use. Customer should periodically visit this page to view the most recent Terms of Use.

  1. Hosted Platform. Subject to the terms and conditions of these Terms of Use and the Agreement, HPS or its subcontractors will provide Customer with access to its proprietary loan servicing network and system (the "Hosted Platform"). DSL, cable or another high speed Internet connection is required for Customer to properly access the Hosted Platform. Customer and its Users are responsible for procuring and maintaining the network connections that connect the Customer network or User to the Hosted Platform, including, but not limited to, "browser" software that supports protocol used by HPS, including Secure Socket Layer protocol or other protocols accepted by HPS, and for following logon procedures for services that support such protocols. HPS assumes no responsibility for the reliability or performance of any connections as described in this Section. Customer shall not attempt to access any other of HPS's systems, programs or data that are not made available for public use in connection with the Hosted Platform.

  2. HPS Technology and Hosted Materials. "HPS Technology" means all of HPS's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer or its Users by HPS in providing the Hosted Platform. "Hosted Materials" means the documentation and all other information developed or provided by HPS or its suppliers under the Agreement to Customer or its Users or made available by HPS to Customer or its Users in the course of using the Hosted Platform.

  3. Provision of HPS Technology and Hosted Materials. As part of its provision of the Services to Customer, HPS shall operate and support the Hosted Platform and hosted environment, including, without limitation, the HPS Technology, all applicable server hardware, disk storage, server operating systems, management programs, web server programs, and Hosted Materials.

  4. Downtime. Subject to these Terms of Use and the Agreement, HPS shall use commercially reasonable efforts to provide the Hosted Platform twenty-four (24) hours a day, seven (7) days a week throughout the term of the applicable Service Order Form for the Services. Customer agrees that from time to time the Hosted Platform may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which HPS may undertake from time to time; or (iii) causes beyond the control of HPS or which are not reasonably foreseeable by HPS, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively "Downtime"). HPS shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. HPS shall have no obligation during performance of such operations to mirror Customer Data on any other server or to transfer Customer Data to any other server. HPS shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Hosted Platform in connection with Downtime, whether scheduled or not.

  5. License Grant/Restrictions. Customer and its Users shall have a non-exclusive license to access the Hosted Platform solely for use of the Services. Customer at its Users are solely responsible for all activities conducted under Customer's User logins and passwords and for its Users' compliance with this Agreement and all applicable laws. Unauthorized use, resale or commercial exploitation of the Hosted Platform in any way is expressly prohibited. Without HPS's express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Hosted Materials, including the HPS Technology, or access the Hosted Platform in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Hosted Platform. Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Hosted Platform or the Hosted Materials to any third-party. Customer shall not use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Hosted Platform. Customer also agrees to be bound by any further restrictions set forth on the Service Order Form. All rights not expressly granted to Customer are reserved by HPS and its licensors. There are no implied rights. In addition to HPS's other remedies hereunder, HPS reserves the right upon notice to Customer to terminate any User's right to access the Hosted Platform if such User has violated any of the restrictions contained in these Terms of Use or the Agreement.

  6. Ownership. Customer acknowledges and agrees that (i) as between HPS and Customer, all right, title and interest in and to the Hosted Platform, the Hosted Materials, including the HPS Technology and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain HPS's or its licensors', and HPS in no way conveys any right or interest in the Hosted Materials, the HPS Technology or the Hosted Platform other than a limited license to use them in accordance herewith, and (ii) the Hosted Materials, the HPS Technology and the Hosted Platform are works protected by copyright, trade secret, and other proprietary rights and laws. The HPS name, the HPS logo, the ECSI name, ECSI logo, and the product names associated with the Hosted Platform are trademarks of HPS or third parties, and no right or license is granted to use them. Customer shall not remove any HPS or ECSI trademark or logo from the Hosted Platform (without HPS's consent and only upon the payment of additional fees to HPS).

  7. HPS's privacy policy, found at http://www.heartlandpaymentsystems.com/Privacy-Policy, explains how HPS collects and uses (i) Customer Data submitted by Customer or Customer's employees or agents; or (2) about Customer or Customer's employees or agents through technological means. Access or use of the Hosted Platform is subject to the HPS's privacy policy.

  8. Handling of Customer Data Upon Termination. Customer agrees that following termination of the Agreement or the Service Order Form(s), HPS may immediately deactivate Customer's and its Users' access to the Hosted Platform and that following a reasonable period of not less than thirty (30) days shall be entitled to delete Customer's account from HPS's "live" site. HPS agrees to retain Customer Data and other documents relative to this Agreement for the current fiscal year, plus seven (7) years after final payment. Customer, its authorized agents, and/or state auditors shall have full access to and the right to examine any of said materials during said period, during normal working hours upon reasonable advance written notice to HPS.

  9. Federal Government End User Provisions. If Customer is the U.S. Federal Government, HPS provides the Hosted Platform, including related Hosted Materials and HPS Technology, in accordance with the following: Government technical data and software rights related to the Hosted Platform include only those rights customarily provided to the public as defined in these Terms of Use and the Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with HPS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

  10. Users: Passwords, Access and Notification. Customer shall authorize access to and assign unique passwords to the number of Users purchased by Customer on the Service Order Form(s). User logins are for designated Users and cannot be shared or used by more than one User. Customer shall notify HPS promptly in the event that a User login must be deactivated (i.e., upon separation of the assigned employee from the Customer). Customer shall also contact HPS for the assignment of a unique login to any new User. Customer will be responsible for the confidentiality and use of User passwords. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Hosted Platform or under Customer's account. Customer agrees to immediately notify HPS if Customer becomes aware of any loss or theft or unauthorized use of any Customer or User passwords.

  11. Transmission of Data. Customer understands that the technical processing and transmission of Customer's electronic communications is fundamentally necessary to Customer's use of the Hosted Platform. Customer expressly consents to HPS's interception and storage of electronic communications and/or Customer Data, and Customer acknowledges and understands that Customer's electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by HPS. Customer acknowledges and understands that changes to Customer's electronic communications may occur (including but not limited to encryption and compression) in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Customer agrees that HPS is not responsible for any electronic communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks including, but not limited to, the Internet and Customer's local network. Customer acknowledges and agrees that all email messages sent through use of the Hosted Platform may not be received by their intended recipients.

  12. Modifications to Hosted Platform. HPS may make modifications to the Hosted Platform or particular components of the Hosted Platform from time to time provided that such modifications do not materially degrade any functionality or features of the Hosted Platform and HPS will use commercially reasonable efforts to notify Customer of any material modifications.

  13. Suspension for Ongoing Harm. Customer agrees that, upon reasonably contemporaneous notice (which may be made by email or telephone), HPS may suspend Customer's access to the Hosted Platform if HPS reasonably concludes that the Hosted Platform is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of the Hosted Platform is causing immediate, material and ongoing harm to HPS or others. In the extraordinary event that HPS suspends Customer's access to the Hosted Platform, HPS will use commercially reasonable efforts to limit the suspension to the offending portion of the Hosted Platform and resolve the issues causing the suspension of Hosted Platform. Customer agrees that HPS shall not be liable to Customer, Customer's Users, or to any third party for any suspension of access to the Hosted Platform under such circumstances as described in this Section 13.