END-USER LICENCE AGREEMENT
Last updated on 26th February 2021
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 70 Sir John Rogerson's Quay, 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.
- 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 the Service;
- 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 notifying us, in writing, as such a change may require amendments to the Service or the hardware; 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, US Patent 10,169,751 and pending patents in multiple jurisdictions.
- 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 service marks.
- 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, loyalty programs, promotions, advertisements, product listings 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 circumstances 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 practicable.
- 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 this EULA;and
- if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
- Subject to clauses 9(1) to 9(4) (inclusive), in circumstances where hardware is required for the Service to be provided we warrant to provide the Service to you for a period of at least twelve (12) months from the date that the hardware is first delivered. For all other circumstances we warrant to provide you the Service for a period of at least twelve (12) months from the date that your Pointy account is created. Should we Terminate for Convenience in accordance with clause 12.2 we will refund you the amount paid by you for the Service on a pro-rata basis upon return of any hardware supplied to you by us (if applicable). 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 circumstances.
- 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 agents;
- fraud or fraudulent misrepresentation;
- any other liability which may not be excluded by law.
- To the maximum extent permitted by law, our total liability and that of our affiliates, officers, employees, agents, suppliers or licensors, arising out of or in connection with this EULA is limited to the greater of €100 (one hundred euro) or the total amount paid by you for the Service during the 12 months immediately proceeding the event to which the liability relates.
- 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”)
- On termination:
- all rights granted to you under this EULA shall cease;
- 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 Service.
- 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 party.
- 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 you.
- 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 and effect.
- 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 exclusive jurisdiction.
- 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 the parties.
This EULA has been entered into on the date of the creation of your account.
Copyright , Pomo Search Limited.