END-USER LICENCE AGREEMENT
Last updated on 14th May 2018
This end-user licence agreement (EULA or licence) is a legal agreement between you (End-user
or you) and Pomo Search Limited, trading as Pointy,
an incorporated and registered company in the Republic of Ireland with a
company registration number of 538318 whose registered office is located at
1 Stokes Place, St. Stephen’s Green, Dublin 2, Ireland (Licensor, us or we).
We are providing you with access to and use of our Service, defined below in clause 1.1. We licence the use of the Service to you on the basis of this
EULA. We are not selling the Service to you. We retain complete ownership of the Service, and all data generated by your use
of the Service, at all times.
- By creating an account and signing up to use the Service you agree to
the terms of this End User Licence Agreement which will bind you.
- If you do not agree to the terms of this EULA you must stop the
application process now or deactivate your account. You may only create an account and continue to use the Service if
you agree to all the terms of the EULA.
You should save a copy of this EULA for future reference.
- Services include
our website, any mobile or web based applications, software, programs, database, documentation, tools,
internet-based services, components, updates (including software
maintenance, service information, help content, bug fixes or maintenance
releases) thereto, and hardware products that may be provided to you by us.
Services shall also include to mean any additional or premium features offered to you
by us, subject to any additional terms that relate to those features.
The terms of this EULA apply to the Service,
including any updates or supplements to the Service, unless said updates
or supplements come with separate terms,
in which case those terms may apply. If any open-source software is included in
the Service, the terms of an open-source licence may override some of the terms
of this EULA.
We may change the terms of this EULA from time
to time, for example due to changes in our Service or an amendment to the laws that apply to us and you.
We will date and post the most current version of the terms on our website. If we
make any changes, we will notify you by revising the "Last Updated"
date at the top of the most up-to-date EULA and in some cases, where
appropriate, we may provide you with additional notice (such as adding a
statement to our homepage or sending you an email notification). Any changes
will be effective upon posting the revised version of the EULA (or such later
effective date as may be indicated at the top of the revised terms).
If we do update the terms of this EULA and you
do not agree to the updated terms, you shall be free to decide whether to
accept the terms or stop using the Services. Your continued access or use of
any portion of the Service constitutes your acceptance of such changes. If you
don't agree to any of the changes you must immediately deactivate your account
and notify us of your intention to terminate this EULA, which will be
deemed a Termination for Convenience in accordance with clause 12.2
Business users: If you have created an account
and are using the Service on behalf of an organisation you are agreeing to this
EULA for that organisation and represent and warrant to us that you have the
authority to bind that organisation to this EULA (in which event,
"you" and "your" will refer to that organisation). You may
only use the Service in compliance with this EULA and only if you have the
power to form a contract with us and are not barred under any applicable laws
from doing so.
To the extent that we process your personal information or product information,
details on how we process this information. Additionally, by using the Service, you
acknowledge and agree that internet transmissions are never completely private
or secure. You understand that any message or information you send using the
Service may be read or intercepted by others, even if there is a special notice
that a particular transmission is encrypted.
Any words following the terms including, include,
in particular or for example or any similar phrase in this EULA
will be construed as illustrative and shall not limit the generality of the
related general words.
- GRANT AND SCOPE OF LICENCE
In consideration of you agreeing to abide by the
terms of this EULA, we grant you a limited, non-transferable, non-exclusive and
revocable licence to use the Service. We reserve all other rights.
We retain complete ownership of any and all hardware
that may be provided to you as part of the Service or supplemental services.
- LICENCE RESTRICTIONS
- Except as expressly set out in this
EULA you agree:
together Licence Restrictions.
not to copy the Service or
any part of the Service except where such copying is
incidental to normal use of the Service;
not to rent, lease, sub-license, loan,
translate, merge, adapt, vary or modify the Services;
not to make alterations to, or modifications of,
the whole or any part of the Service, or permit the Service or any part of it
to be combined with, or become incorporated in, any other programs; and
not to disassemble, decompile, reverse-engineer
or create derivative works based on the whole or any part of the Service.
- ACCEPTABLE USE RESTRICTIONS
- You must:
not use the Service in any unlawful manner, for
any unlawful purpose, or in any manner inconsistent with this EULA, or act
fraudulently or maliciously, for example, by hacking into or inserting
malicious code, including viruses, or harmful data into
not infringe our intellectual property or patent
rights or those of any third party in relation to your use of the Service (to the extent that such use is
not licensed by this EULA);
not transmit any material that is defamatory,
offensive or otherwise objectionable in relation to your use of the Service (we retain absolute discretion in determining whether or not an
item is defamatory, offensive or objectionable);
not use the Service in a way that could damage,
disable, overburden, impair or compromise our systems or security or interfere
with other users; and
not collect or harvest any information or data
from any Service or our systems or attempt to decipher any transmissions to or
from the servers running any Service.
Hardware that may be provided as part of the Service
- You must:
- connect the hardware in accordance with the installation instructions provided
to you, in circumstances where we ship the hardware to you for self-install;
not modify or alter the provided hardware in any way;
not disconnect or transfer the provided hardware from the point of sale
machine to which it was originally installed without receiving prior consent,
in writing, from us; and
not permit the hardware provided by us to be confiscated, seized or taken out of your possession or control under any distress,
execution or other legal process.
The risk of loss, theft, damage or destruction will pass to you immediately after the
hardware provided by us has been delivered to your premises. You must give
immediate notice to us, in writing, should the hardware provided be damaged,
destroyed, lost or stolen.
- INTELLECTUAL PROPERTY AND PATENT RIGHTS
- The Services are protected by patent, copyright, trademark, trade secret and other
intellectual property laws.
- The Pointy hardware device, which may have been supplied to
you as part of the service, is protected by US Patent 9,881,289, and pending patents in
The Services are licensed and not sold to you.
We reserve all rights not expressly granted to you in this EULA. The Services
are protected by patent, copyright, trademark, trade secret and other
intellectual property laws. We own the title, copyright and other worldwide
Intellectual Property Rights (as defined below) in the Services and all copies
of the Services. This EULA does not grant you any rights to our trademarks or
For the purposes of this EULA, Intellectual
Property Rights means all patent rights, copyright rights, mask work
rights, moral rights, rights of publicity, trademark, trade dress and service
mark rights, goodwill, trade secret rights, and other intellectual property
rights as may now exist or hereafter come into existence, and all applications
therefor and registrations, renewals and extensions thereof, under the laws of
any state, country, territory or other jurisdiction.
You acknowledge that you have no right to access
the source-code in the software that forms part of the Services.
- USER CONTENT
In connection with your account, any business
listing, and your use of the Service, you may be able to upload or provide
photos, logos, products, loyalty programs, promotions, advertisements,
product listings, barcode data, information stored on a database and other
materials or information ("User Content"). You agree that you will not upload
or provide any User Content unless you have created that content yourself or
you have permission from the content owner to do so.
You grant us and our subsidiaries, affiliates, assigns and successors a worldwide,
non-exclusive, royalty-free, fully-paid, transferable, irrevocable and sub-licensable right
to use, reproduce, modify, adapt, publish, prepare derivative works of,
distribute, publicly perform, and publicly display your User Content
throughout the world in any media in order to provide and promote the Service
and our business. You retain all rights in your User Content, subject to the
rights granted to us in this EULA. You may modify or remove your User Content
from your Pointy Account however we may continue to make use of any User Content
that was provided by you to us under the licence in this clause 6.2.
You agree not to upload or provide User
Content or otherwise post, transmit, distribute, or disseminate through the
Service any material that: (a) is false, misleading, unlawful, obscene,
indecent, lewd, pornographic, defamatory, libelous, threatening, harassing,
hateful, abusive, or inflammatory; (b) encourages conduct that would be
considered a criminal offense or gives rise to civil liability; (c) breaches
any duty toward or rights of any person or entity, including rights of
publicity, privacy or trademark; (d) contains corrupted data or any other
harmful, disruptive, or destructive files; (e) advertises products or services
competitive with the Services, as determined by us in our sole discretion; or
(f) in our sole judgment, is objectionable, restricts or inhibits any person or
entity from using or enjoying any portion of the Services, or which may expose
us or our affiliates to harm or liability of any nature.
Although we have no obligation to screen, edit,
or monitor any User Content, we reserve the right, and have absolute
discretion, to remove, screen, edit, or disable any User Content at any time
and for any reason without notice to you. You understand that by using the
Services, you may be exposed to User Content that is offensive, indecent, or
objectionable. We take no responsibility and assume no liability for any Seller
Content, including any loss or damage to any of your User Content.
Trial of Service
We may offer new users a period within which to trial the Service. We may take credit card details
from you but not charge you for the Service until after the expiry of the agreed trial period and/or trial credits.
Alternatively, we may charge you an up-front payment for the Service and allow you a period of time
to trial the Service. If at any time before the expiry of the agreed trial period you wish to discontinue Service we will refund
you in full. In circumstanes where we have supplied hardware refunds will only be processed upon the safe return of the hardware.
Types of Charges
- The charge for the Service is posted on our Website. We provide the Services to users and charge
for it by way of up-front payment, monthly recurring charge or a combination of both depending on
the Service provided to a user. You are responsible for all applicable taxes, and we will charge
applicable taxes when we are required to do so.
- Accepted payment methods are credit card, direct debit and PayPal. If you choose to pay for the Service with a credit card you represent and warrant that you are authorised to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If we are unable to process your payment, we may suspend your access to the Services and / or your Paid Account until payment can be processed.
- You may cancel your Pointy Paid Account at any time but you won't be issued a refund should cancellation occur after the trial period has expired, or if the hardware supplied has not been returned, unless legally required or in accordance with the terms of this EULA.
- Your Pointy Paid Account will remain in effect until it is cancelled or terminated under these terms. If you don't pay for your Paid Account on time, we reserve the right to suspend it and terminate this EULA.
You will indemnify, defend, and hold us and our
respective employees, directors, agents, affiliates and representatives
harmless from and against any and all claims, costs, losses, damages,
judgments, tax assessments,
penalties, interest, and expenses (including without limitation reasonable
legal expenses) arising out of
or in connection with any claim, action, audit, investigation, inquiry, or
other proceeding instituted by a person or entity that arises out of or relates
to: (a) any actual or alleged breach of your representations, warranties, or
obligations set forth in this EULA (b) your wrongful or improper use of the
Services; (c) any transaction submitted by you through the Services (including
without limitation the accuracy of any User Content or product, service, or
transaction information that you provide or any claim or dispute arising out of
products or services offered or sold by you); (d) your violation of any
third-party right, including without limitation any right of privacy, publicity
rights or Intellectual Property Rights; (e) your violation of any law, rule or
regulation, and (f) any other party's access and/or use of the Services with
your unique name, password or other appropriate security code.
- LIMITED WARRANTY AND SUPPORT
The Service is made available by us on an "as
is" basis and may contain faults and errors. Use of the Service is at your own risk. Except for any warranty, condition,
representation or term to the extent to which the same may not be excluded or
limited, we make no warranties, conditions, representations, or terms (express
or implied whether by statute, common law, custom, usage or otherwise) as to
any matter including without limitation results, non-infringement of any
party's rights, merchantability, integration, satisfactory quality, or fitness for any particular purpose.
We do not warrant that the use of the Services
will be uninterrupted or error-free. We will operate the Services with
reasonable care and skill and will use reasonable commercial efforts to
promptly remedy any faults of which we are aware.
If within the term of
this EULA you notify us in writing of any serious defect or material
fault in the Service, we will use our endeavours to provide
technical support and attempt to rectify the error as soon as reasonably
This limited warranty does not apply:
if the defect or fault in the Service results
from you having amended the Service in breach of terms of this EULA;
if the defect or fault in the Service results from you having used the Service in contravention of the terms of
if you breach any of the Licence Restrictions or
the Acceptable Use Restrictions.
Subject to clauses 9(1) to 9(4) (inclusive), we warrant to provide the Service to you for a
period of at least twelve (12) months from the date you paid for it where payment for
the Service was charged on a one-time up-front basis. Should we Terminate for
Convenience in accordance with clause 12.2 we will refund you the amount paid on a
pro-rata basis upon return of any hardware supplied to you by us. No refund is available
should you Terminate for Convenience.
- LIMITATION OF LIABILITY
You acknowledge that the Service has not been developed to meet your
individual requirements, and that it is therefore your responsibility to ensure
that the Service meets your requirements.
We will not in any circumstances have any
liability for any losses or damages which may be suffered by you (or any person
claiming under or through you), whether the same are suffered directly or
indirectly or are immediate or consequential, and whether the same arise in
contract, tort (including negligence) or otherwise howsoever, which fall within
any of the following categories:
special damage even if we were aware of the
circumstances in which such special damage could arise;
loss of profits;
loss of anticipated savings;
loss of business opportunity;
loss of goodwill; and
loss or corruption of data.
You agree that, in entering into this EULA, you
did not rely on any representations (whether written or oral) of any kind or of
any person other than those expressly set out in this EULA
and that you shall have no remedy in respect of such
representations and (in either case) we shall have no liability in any
The exclusions set out in this clause 10 shall apply to the fullest extent permissible
at law, but we do not exclude liability for:
death or personal injury caused by our
negligence, or the negligence of our officers, employees, contractors or
fraud or fraudulent misrepresentation;
any other liability which may not be excluded by
To the maximum extent permitted by law, our total
liability and that of our its affiliates, officers, employees, agents, suppliers
or licensors, arising out of or in connection with this EULA is limited to €100
(one hundred euro).
- EVENTS OUTSIDE OUR CONTROL
We will not be liable or responsible for any failure to perform,
or delay in performance of, any of our obligations under this EULA that is caused
by any act or event beyond our reasonable control, including failure of public or
private telecommunications networks (Event Outside Our Control).
If an Event Outside Our Control takes place that affects
the performance of our obligations under this EULA:
our obligations under this EULA will be suspended and the time for performance of our obligations
will be extended for the duration of the Event Outside Our Control; and
we will use our reasonable endeavours to find a solution by which our obligations under this EULA
may be performed despite the Event Outside Our Control.
Termination for Cause
- Without affecting any other right or remedy available to it, either party may terminate this EULA
with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of this EULA which breach is irremediable or if such breach is remediable fails to remedy that breach after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of this EULA in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this EULA;
- the other party is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12(1)(c) to clause 12(1)(f) (inclusive); or
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- Without affecting any other right or remedy available to us, we may terminate this EULA with
immediate effect by giving written notice if:
- You fail to pay any amount due under this EULA and you remain in default after being
notified to make such payment; or
- there is a change of control of either party.
(“Termination for Cause”)
Termination for Convenience
We may immediately terminate this EULA for any reason and may
do so without giving notice to you. Upon giving us 10 calendar day's written
notice you may terminate this EULA. (“Termination for Convenience”)
all rights granted to you under this EULA shall
you must immediately cease all activities
authorised by this EULA, including your use of any Services;
you must immediately deactivate your
account with us;
we may remotely access the Service and cease providing you with access
to the Service; and
we may enter onto your premises at a time that
is mutually convenient to remove all items of hardware that formed part of the
Should this EULA be terminated for any reason we
will continue to retain complete ownership of all data that has been generated
by your use of the Service up to the date of termination. We also retain the right to use any User
Content that was provided to us by you under clause 6.2 should this EULA terminate.
- COMMUNICATION BETWEEN US
If any condition in this EULA requires you to give us notice in writing, you can send
this to us by e-mail at firstname.lastname@example.org.
- NO PARTNERSHIP OR AGENCY
Nothing in this EULA is intended to, or
shall be deemed to, establish any partnership or joint venture between any of
the parties, constitute any party the agent of another party, or authorise any
party to make or enter into any commitments for or on behalf of any other
Each party confirms it is acting on its own
behalf and not for the benefit of any other person.
We have implemented technical and organisational
measures designed to secure your personal information from accidental loss and
from unauthorized access, use, alteration, or disclosure. However, we cannot
guarantee that unauthorised third parties will never be able to defeat those
measures or use your personal information for improper purposes. You
acknowledge that you provide your personal information at your own risk.
- OTHER IMPORTANT TERMS
We may assign, transfer, or otherwise dispose of our rights and obligations under this
EULA, in whole or in part, at any time without notice but this will not affect
your rights or our obligations under this EULA.
You may only transfer your rights or obligations
under this EULA to another person if we agree in writing.
If we fail to insist that you perform any of
your obligations under this EULA, or if we do not enforce our rights against
you, or if we delay in doing so, that will not mean that we have waived our
rights against you and will not mean that you do not have to comply with those
obligations. If we do waive a default by you, we will only do so in writing,
and that will not mean that we will automatically waive any later default by
Each of the conditions of this EULA operates
separately. If any court or competent authority decides that any of them are
unlawful or unenforceable, the remaining conditions will remain in full force
This EULA, its subject
matter and its formation, are governed by Irish law. You and we both agree that the courts of the Republic of Ireland will have
This EULA and any documents expressly referred
to herein contain the whole agreement between the end user and licensor and the
EULA supersedes all prior agreements, arrangements and understandings between
This EULA has been entered into on the
date of the creation of your account.
Copyright 2018, Pomo Search Limited.