Last Updated: September 7, 2023
1. THE SERVICES
1.1 These Terms of Service (“Terms”) govern access to and use of the Watermark Insights, LLC
website, Watermark affiliates websites, and all related software, products and/or subscription
services (collectively, the “Service”). These Terms apply to all end users of the Service
(hereinafter, “you”). You may use the Service only in compliance with these Terms, any
agreement entered into by your institution relating to the Service to the extent such terms do
not conflict with these Terms, and all applicable local, state, national, and international laws,
rules and regulations.
1.2 If your institution (“Organization”) has entered into a Organization Subscription Agreement
(“OSA”) with Watermark relating to the Service, Watermark agrees that Organization and its
employees shall be bound by the terms and conditions of the OSA and therefore Watermark
waives compliance by Organization and its employees with any conflicting provisions herein.
Nothing in these Terms supersedes or limits your rights under the terms and conditions of any
written agreement you have entered into with Watermark regarding the use of Services, and in
the event of any conflict between these Terms and the terms and conditions of an applicable
written agreement you have entered into with Watermark, the terms and conditions of the
written agreement shall control. Subject to the foregoing, these Terms constitute a binding
contract between you and Watermark, which establishes your and Watermark’s rights,
obligations, and liabilities regarding your use of the Service.
1.3 Subject to and conditioned on payment of fees for the Service and compliance with the
Terms and all other terms and conditions of the OSA, if applicable, Watermark grants to you a
limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service
subject to any further limitations and restrictions established by the Organization for its end
users. Your rights to access the Service cease when the Organization stops payment or
terminates the Organization’s agreement with Watermark.
1.4 Subject to any applicable OSA, Watermark may modify the Terms at any time. Changes
will become effective when Watermark posts the modified Terms on the Website. Continued
use of the Service by you constitutes acceptance of the Terms as modified.
2. END USER RESTRICTIONS AND RESPONSIBILITIES
2.1 You are responsible for your use of the Services, including for:
(i) ensuring that any information you have provided to Watermark in order to register or use
the Service as an end user, and any data or other materials that you post or upload, either directly or indirectly through the Organization, to the Service (“Materials”), is and remains
complete, accurate and current;
(ii) any use of the Service using your access codes, username and/or password, whether the use
is by you personally or by someone else;
(iii) maintaining the security of your access to the Service and the confidentiality of any access
codes, username and password provided to you. In the event that you become aware of or
believe there has been any breach with respect to the foregoing, such as the theft or
unauthorized use of your access codes, username or password, you agree to notify Watermark
immediately;
(iv) complying with the Terms, as modified from time to time by Watermark, and with any
other rules and regulations of which Watermark or the Organization gives you notice; and
(v) obtaining and using all computer hardware and software required for your access to and use
of the Service and for any charges incurred for your own access to the Website through an
Internet access provider or other third-party website.
2.2 You shall not, directly or indirectly: (a) attempt to gain access to Watermark’s software
code for any purpose, including without limitation, to modify, disassemble, de-compile, reverse
engineer, or otherwise attempt to determine the source code or protocols from the object code
of the Service or knowingly permit or encourage any third party to do so; (b) use the Service in
any manner to provide service bureau, time-sharing or other computer services to third parties;
(c) use the Service in any manner to assist or take part in the development, marketing, or sale
of a product potentially competitive with the Service; (d) remove or modify any proprietary
marking or restrictive legends placed on the Service; or (e) use the Service, or allow the
transfer, transmission, export, or re-export of the Service or portion thereof in violation of any
applicable law, including, without limitation, export control laws or regulations administered by
a government agency of competent jurisdiction. You shall provide such information as
Watermark may reasonably request, in order to carry out the Service, in a timely manner, and
ensure that it is complete and accurate in all respects. If Watermark’s performance of its
obligations under these Terms Is prevented or delayed by your act or omission, Watermark
shall not be deemed in breach of its obligations.
2.3 The license granted herein is nonexclusive, personal to you, and nontransferable. Any
access codes, username and password are intended for your use alone. Such access codes,
username and password may not be shared. If you are under the age of 18, you represent that
you have obtained your parent’s or legal guardian’s consent to register for or use the Service.
Users under the age of 13 are strictly prohibited from using the Service, unless they have
received written permission from their parent, legal guardian or a teacher, and have forwarded
such written permission to Organization, with a copy to Watermark at the below address:
Watermark Legal Department
10900-B Stonelake Boulevard, Suite 350
Austin, TX 78759
Attn: Legal Department
3. SERVICE AVAILABILITY
3.1 Watermark shall endeavor to ensure that the Service is available, except for scheduled
downtime for maintenance or in the event of a force majeure event (as defined herein). In the
event of unexpected downtime, Watermark’s sole obligation will be to use commercially
reasonable efforts to resolve the issue as soon as reasonably practicable under the
circumstances. Notwithstanding anything to the contrary in the Terms, Watermark may
temporarily suspend your access to any portion or all of the Service if: (i) Watermark reasonably
determines that (A) there is a threat or attack on any of Watermark’s IP; (B) your use of
Watermark’s IP disrupts or poses a security risk to Watermark’s IP or to any other customer or
vendor of Watermark; (C) you are using Watermark’s IP for fraudulent or illegal activities; (D)
Watermark determines in its discretion that you cease to be an authorized end user of
Organization entitled to access and use the Service (if applicable); or (E) Watermark’s provision
of the Service to Organization or you is enjoined or otherwise prohibited by applicable law, or
threatened to be enjoined or prohibited; or (F) the Organization ceases paying its subscription
fees or otherwise terminates its relationship with Watermark; or (ii) any vendor of Watermark
has suspended or terminated Watermark’s access to or use of any third-party or products
required to enable you to access the Service; (any such suspension described in subclause (i), or
(ii), a “Service Suspension”). Watermark will not be liable to you if Watermark exercises its
suspension rights as permitted by this Section.
3.2 Watermark may change or discontinue any portion, feature or content of the Service at
any time with or without notice to you. Likewise, Watermark may at any time, with or without
notice to you, restrict the use and accessibility to the Service as well as limit the duration and
amount of use made of the Service.
3.3 Watermark accounts and the features and services that make up Watermark’s tools are
limited in terms of the bandwidth for network traffic and disk utilization for storage allocated to
them. Widely exceeding reasonable bandwidth or capacity based on end user normal usage
patterns is prohibited. If there is excess usage on your account, Watermark reserves the right to
temporarily disable access to your account. Repeated violations may result in termination of
your account.
4. OWNERSHIP OF MATERIALS AND TECHNOLOGY COMPRISING THE SERVICE
4.1 WATERMARK DOES NOT OBTAIN ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HOLD IN
YOUR MATERIALS, OTHER THAN THE LIMITED LICENSE GRANTED TO WATERMARK TO USE
MATERIALS TO PROVIDE THE SERVICE, AS PROVIDED IN THE TERMS AND ANY APPLICABLE OSA.
4.2 Watermark retains ownership of the Service, including its technological components, and
developments and derivatives thereof including all intellectual property rights contained
therein.
4.3 Watermark may delete any inappropriate Materials posted or uploaded on the Service and
reserves the right (but not the obligation) to take any action which Watermark deems
appropriate in its sole discretion with respect to any such Materials. By way of illustration, and
not limitation, inappropriate Material includes material that is unlawful, harmful, threatening,
abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s
privacy, or racially, ethnically or otherwise objectionable.
4.4 In the event that you are in possession of any information concerning the violation of
privacy rights or infringement of the intellectual property rights of any third party by the
presence of any Materials on the Service, notify Watermark at legal@watermarkinsights.com.
4.5 Watermark may monitor your use of the Service and collect and compile Aggregated
Statistics. As between Watermark and you, all right, title, and interest in Aggregated Statistics,
and all intellectual property rights therein, belong to and are retained solely by Watermark. You
acknowledge that Watermark may compile Aggregated Statistics based on your data input into
the Services. You agree that Watermark may (i) make Aggregated Statistics publicly available in
compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the
manner permitted under applicable law; provided that such Aggregated Statistics do not
identify you or your personal information. “Aggregated Statistics” means data and information
related to Organization’s and end user’s use of the Service that is used by Watermark in an
aggregate and anonymized manner, including to compile statistical and performance
information related to the provision and operation of the Service. Subject to the provisions of
the Terms, your Materials will be treated in accordance with the Privacy Policy (as defined
herein).
4.6 If you send or transmit any communications or materials to Watermark suggesting or
recommending changes to Watermark’s IP, including without limitation, new features or
functionality relating thereto, or any comments, questions, suggestions, or the like
(“Feedback”), Watermark is free to use such Feedback irrespective of any other obligation or
limitation between the parties governing such Feedback. You hereby assign to Watermark, all
right, title, and interest in, and Watermark is free to use, without any attribution or
compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual
property rights contained in the Feedback, for any purpose whatsoever, although Watermark is
not required to use any Feedback.
4.7 Watermark may, from time to time , conduct optional polls of end users to ascertain and
measure the use and enjoyment of the Service by end users. All right, title and interest in poll
inquiries and responses will belong to Watermark.
5. PRIVACY
Any information concerning your use of the Service will be treated in accordance with the
Privacy Policy of Watermark, which is available on the Website (the “Privacy Policy”). By
registering with Watermark or using the Service, you agree that you are acquainted with the
terms and conditions of the Privacy Policy, and accept them in their entirety. You acknowledge that Watermark may use such mechanisms to monitor your use of the Service as set out in the
Privacy Policy, and may share such data with third parties, also in accordance with the Privacy
Policy and any applicable OSA. All references to the “Terms” in this agreement shall include a
reference to the Privacy Policy.
6. TERMINATION OF ACCESS
6.1 Watermark may suspend or terminate your accounts or cease providing you with the
Service without notice at any time for any reason, including, but not limited to, immediately
upon the expiration or termination of any applicable OSA governing the relationship between
the Organization and Watermark. For example, Watermark may suspend or terminate your use
of the Service if you violate these Terms, or engage in conduct that Watermark believes is
harmful to Watermark or other end users. In event of Service termination: (a) all licenses
granted hereunder to you shall immediately terminate, and (b) you shall immediately cease
using the Service.
6.2 You may stop using the Service at any time; however, acknowledge that stopping the
Service does not entitle you or the Organization to a refund of prepaid subscription fees or
forgiveness on your financial commitment throughout the agreed upon subscription term.
7. DISCLAIMER OF WARRANTIES
7.1 Disclaimer. Except as expressly provided in the Terms: (a) use of the Service is at your sole
risk; and (b) Watermark makes no express or implied warranty that the Service will be
uninterrupted or error free, nor does it make any warranty as to the results that may be
obtained from use of the Service, or as to the accuracy, reliability, completeness, or content of
any information or Materials, software or merchandise that may be provided through the
Service. No statement, information or advice, including, but not limited to statements regarding
capacity, suitability for use or performance, whether made by a Watermark employee, reseller
or other representative or otherwise, which is not contained in this agreement shall be deemed
to be a warranty by Watermark for any purpose or give rise to any liability of Watermark
whatsoever, and you agree that you will not rely on any such statement, information or advice.
7.2 No Editorial Control. You acknowledge that Watermark exercises no editorial control over
Material posted by you or other end users of the Service. The views and opinions expressed in
such information do not necessarily reflect those of Watermark. Watermark does not make any
warranties or representations regarding the accuracy, adequacy, truthfulness, completeness, or
usefulness of such information.
7.3 Third Party Websites. Any links provided from the Service are to websites not under control
of Watermark, and Watermark in no way endorses or shall have any liability arising from such
sites or the products or services offered therein. Watermark does not endorse any such linked
websites.
7.4 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICE,
SUPPORT, TRAINING AND ALL INFORMATION, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE SERVICE ARE PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” BASIS. THERE IS NO
EXPRESS OR IMPLIED WARRANTY MADE AGAINST INTERFERENCE WITH THE ENJOYMENT OF
ACCESS TO THE SERVICE OR THE INFORMATION CONTAINED THEREIN. WATERMARK HEREBY
DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, USAGE, FITNESS
FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WATERMARK BE LIABLE TO YOU
OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES THAT ARISE FROM LOSS OF ANTICIPATED
REVENUE, LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF
BUSINESS AND INJURY TO PROPERTY, EVEN IF WATERMARK HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES) THAT ARISE IN CONNECTION WITH OR RESULT FROM YOUR
USE OF OR INABILITY TO USE THE SERVICE INCLUDING, BUT NOT LIMITED TO, RELIANCE ON ANY
MATERIALS, CONTENT, INFORMATION, WEBSITES, SOFTWARE OR PRODUCTS OBTAINED ON
THE WEBSITE, OR MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATIONS FAILURE,
DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES, DELAYS IN
OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, OR THEFT, DESTRUCTION
OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR WEBSITES. SOME STATES DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, AND IN SUCH STATES WATERMARK’S LIABILITY IS LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW. If, notwithstanding the foregoing, Watermark is held liable for
damages, then regardless of the form of action (whether in contract, tort, breach of warranty
or otherwise), in no event shall the maximum liability of Watermark or its affiliates, directors,
officers, shareholders, employees, agents or third party providers exceed the aggregate dollar
amount paid by you in the twelve (12) month period preceding the date of the claimed injury or
damage.
9. INDEMNIFICATION BY YOU
To the extent authorized by applicable law, you shall, at your sole cost and expense, indemnify,
defend and hold harmless Watermark and its affiliates and their respective employees, officers,
directors, shareholders, agents, insurers or third party providers from and against all actual or
threatened claims by third parties and pay all costs, including reasonable attorneys’ fees, and
damages resulting from such claims arising out of: (a) your use of the Service, (b) any breach of
the Terms by you, (c) violation of any law or regulation by you, or (d) the infringement,
misappropriation or violation by you of any patent, copyright, trademark, trade secret or other
proprietary or privacy right of a third party.
10. COMPLIANCE WITH UNITED STATES EXPORT REQUIREMENTS
This agreement and your use of the Service are subject to any laws, regulations, orders or other
restrictions on export from the United States of America of certain materials and technical data which may be imposed from time to time by the U.S. Government. Therefore, you will not
transfer, directly or indirectly, by electronic means or otherwise, any Materials or information
contained therein, or any direct products thereof, to any country, or to any agent,
representative, or foreign national of any country, for which the U.S. Government or any
agency thereof requires an export license or other governmental approval at the time of export
without first obtaining such license or approval.
11. NOTICES
Watermark may give notice to you by electronic mail, by a posting on the Service, or by
conventional mail. Notice by Watermark shall be effective on the date that Watermark makes a
good faith effort to reach you. You shall give notice to Watermark as stated below. Notice by
you shall be effective on the date that Watermark receives the notice.
Via email: legal@watermarkinsights.com
Via U.S. mail: 10900-B Stonelake Boulevard, Suite 350 Austin, TX 78759 Attn: Legal Dept
12. MISCELLANEOUS
12.1 In the event that any provision of the Terms is held to be invalid or unenforceable,
pursuant to judicial decree or decision, the remainder of this agreement shall remain valid and
enforceable according to its terms.
12.2 You acknowledge that Watermark will be irreparably harmed by any breach of the Terms
by you or by your unauthorized use of the Materials or the Service and, further, that monetary
damages may not be a sufficient remedy for such harm. You agree that Watermark shall be
entitled, without waiving any other rights or remedies and without further demonstration of
irreparable harm or the inadequacy of monetary damages, to seek injunctive or other equitable
relief in the event of any breach of this agreement by you or by your unauthorized use of the
Materials or the Service.
12.3 Nothing in the Terms, express or implied, is intended to make any person or entity that is
not a signer to the OSA a third-party beneficiary of any right created by the OSA or by operation
of law.
12.4 If any party to the Terms is rendered unable, wholly or in part, by force majeure to carry
out its obligations under this agreement, that party shall give to the other party prompt written
notice of the force majeure event; thereupon the obligations of the party giving the notice, so
far as they are affected by the force majeure, shall be suspended during, but no longer than,
the continuance of the force majeure. The affected party shall use all reasonable diligence to
remove the force majeure situation as quickly as practicable, provided that resolution of a force
majeure event shall be at the sole discretion of the affected party. The term “force majeure” as
herein contemplated, shall mean an act of God, strike, lockout, or other industrial disturbance,
act of the public enemy, war, blockade, public riot, plague, pandemic, lightening, fire, storm,
flood, earthquake, explosion, governmental action, governmental delay, restraint or inaction, unavailability of equipment, service or supplies and any other cause, whether of a kind
specifically enumerated above or otherwise which is not reasonably within the control of the
party claiming suspension.
12.5 The meaning of this agreement cannot be changed by your or Watermark’s conduct, even
if repeated, or by any custom or practice of others engaged in the same or similar businesses.
12.6 Neither party is, nor shall be deemed to be, an employee, agent, co-venturer, or legal
representative of the other party for any purpose. The parties are independent contractors.
Neither this agreement nor any interest hereunder shall be transferable or assignable by you
without the prior written consent of Watermark. Subject to the foregoing, the rights and
obligations hereunder shall be binding on each party and their respective permitted successors
and assigns. Whenever possible, each provision of the Terms shall be interpreted in such
manner as to be effective, valid and enforceable under applicable law, but if any provision of
the Terms is held to be prohibited by or invalid or unenforceable under applicable law, such
provision shall be ineffective only to the extent of such prohibition or invalidity or
unenforceability, without invalidating, or rendering unenforceable, the remainder of the Terms.
The Terms contain the entire understanding and agreement between the parties hereto with
respect to the matters referred to herein, and supersedes any prior agreements on this subject
matter between the parties with respect to the subject matter hereof (except in the case of an
applicable OSA, as noted above). No provision of the Terms shall be waived by any act, omission
or knowledge of a party or its agents or employees except by an instrument in writing expressly
waiving such provision and signed by a duly authorized officer of the waiving party. No waiver
shall constitute a consent to or waiver of any other breach of the same obligation or a breach of
any other obligation contained herein. The Terms shall be governed by and construed in
accordance with the laws of the United States and the State of Texas, without regard to
conflicts of laws and principles thereto. The Terms will not be governed by the United Nations
Convention on Contracts for the International Sale of Goods. Any suit brought by either party
against the other party shall be brought exclusively in a court in Austin County, State of
Texas. Each party hereby waives and agrees not to assert any claim of improper venue, lack of
personal jurisdiction or forum non conveniens in any claim brought according to the terms of
this Section. You irrevocably consent to service of process, delivered personally or mailed by
certified or registered mail, return receipt requested, at the address set forth in your end user
information.