END-USER LICENSE AGREEMENT FOR PointOS Professional.
IMPORTANT PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALL: PointOS Professional End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and ShakenSoft, LLC d/b/a PointOS for the ShakenSoft, LLC software product(s) identified above which may include associated software components, media, printed materials, and “online” or electronic documentation (“SOFTWARE”) and access to the website associated with the services (www.pointos.com), updates, enhancements and support (“SERVICES”). By installing, copying, or otherwise using the SOFTWARE or SERVICES, or by clicking to accept these terms, or providing your written agreement to these terms, you agree to be bound by the terms of this EULA. This license agreement represents the entire agreement concerning the program between you and ShakenSoft, LLC (referred to as “licenser”), and it supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE and SERVICES.
The SOFTWARE and SERVICES are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE and SERVICES are licensed, not sold.
1. GRANT OF LICENSE.
The SOFTWARE and SERVICES are licensed as follows:
(a) Installation and Use.
ShakenSoft, LLC grants you the non-exclusive right to install and use copies of the SOFTWARE on your computer running a validly licensed copy of the operating system for which the SOFTWARE was designed [e.g., Windows 7, Windows 8, Windows 10 or newer] and access the SERVICES, provided that you pay any applicable fees for such SOFTWARE or SERVICES which are due from time to time during the term. The SOFTWARE and SERVICES are for your internal business use in the United States only to manage your point of sale activities in accordance with the terms of this EULA.
(b) Backup Copies.
You may also make limited copies of the SOFTWARE as may be necessary for backup and archival purposes.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
(a) Maintenance of Copyright Notices.
You must not remove or alter any copyright notices on any and all copies of the SOFTWARE or SERVICES.
You may not distribute registered copies of the SOFTWARE or SERVICES to third parties. Evaluation versions available for download from ShakenSoft, LLC or PointOS’s websites may be freely distributed.
(c) Prohibition on Reverse Engineering, Decompilation, and Disassembly.
You may not reverse engineer, decompile, disassemble or create derivative works of the SOFTWARE or SERVICES, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
You may not rent, lease, or lend the SOFTWARE or SERVICES to any other person or business.
Customer Support. Level 1 phone support is available 24 hours/day 7 days a week. However, ShakenSoft, LLC does not guarantee that Level 1 support will be available at all times. Reasons for support downtime may include, but are not limited to weather, maintenance, or other technical issues out of ShakenSoft, LLC’s control. Any issues requiring escalation, may be resolved by Level 2 or higher. Escalated issues will be resolved as quickly as possible when a development engineer is available. Depending on the issue, ShakenSoft, LLC does not guarantee any specific time period for resolution. ShakenSoft, LLC reserves the right to deny any/all support to any customer who is deemed abusive, uncooperative, or for any other reason at ShakenSoft, LLC’s discretion. Customer support levels may be limited based upon the SERVICES subscription package you purchase. See www.mypointos.com for details. Currently, you receive up to two (2) hours of Support per Quarter at no charge. Support hours must be used in that Quarter or are lost as they do not accumulate or roll over. For Support over two (2) hours per Quarter, each Request for Support must be approved by an Account Representative, and the current charge is $149.99 per hour (billed in 20 minute increments). Such charge is subject to change from time to time.
ShakenSoft, LLC’s Standard White Glove installation and setup is limited to 1.5 hours of Support. Additional hours of White Glove installation and setup services (with your authorization) will be billed at $124.99 per hour and billed in 20 minute increments. This cost is subject to change from time to time.
ShakenSoft, LLC does not support third party software, hardware or any product that was not purchased from ShakenSoft, LLC. Hardware sold by ShakenSoft, LLC will receive limited basic support and at any point the customer may be referred to the manufacturer.
ShakenSoft, LLC will provide SERVICES on a pay subscription basis. Current SERVICES subscription fees are available at www.mypointos.com. Subscription fees may be changed from time to time by ShakenSoft, LLC in its sole discretion. Additionally, SERVICES may be denied or terminated to any customer at any time. Termination of SERVICES may include but is not limited to abusive behavior to support staff, hacking or attempting to change the PointOS code or database, the use of pirated serial numbers, failure to pay SERVICES subscription fees, or any other reason at the sole discretion of ShakenSoft, LLC. If in the event ShakenSoft, LLC no longer exists as a company, support will no longer be provided.
(f) Compliance with Applicable Laws.
You warrant and represent that you will comply with all applicable laws regarding use of the SOFTWARE and SERVICES and the conduct of your business. This includes but is not limited to the use and storage of state issued identification information and images, use and storage of customer information, and the use and storage of all credit card information. This information may not be misused, sold or replicated in any way. The collection and use of this data must be in compliance with all state, local, and federal law and must not violate your credit card merchant agreements. You acknowledge that all transactions submitted by you through the SOFTWARE and SERVICES are from sales or services that you actually provided; and the terms of such transactions are correct in all respects, including all applicable tax laws and credit card association rules and regulations. The SOFTWARE and SERVICES will not be used for any activity which is not legal in the jurisdiction where you provide your goods or services. ShakenSoft, LLC is not responsible for any misuse of the SOFTWARE or SERVICES for any purpose that is in violation of any applicable law. Using the SOFTWARE or SERVICES in any way illegal way will violate this agreement and the license will be revoked.
Without prejudice to any other rights, ShakenSoft, LLC may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must immediately stop using the SOFTWARE and SERVICES and destroy all copies of the SOFTWARE in your possession. In the event that your SERVICES are terminated for failure to pay the applicable SERVICES charges, and you are not otherwise in breach of this EULA, you may continue to use the SOFTWARE on your internal computer but will not have access to the SERVICES or the website associated with the SERVICES. All terms of this EULA which by their terms survive termination, including but not limited to Sections 4, 6, 7 and 9 shall survive any such termination.
All title and intellectual property rights, including but not limited to copyrights, in and to the SOFTWARE and SERVICES and any copies thereof are owned by ShakenSoft, LLC or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE and SERVICES is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by ShakenSoft, LLC. You agree to protect all confidential information ShakenSoft, LLC provides to you using reasonable care, consistent with how you protect your own confidential information. ShakenSoft, LLC’s confidentiality information may not be disclosed to any person except to your employees to the extent necessary for the purposes of using the SOFTWARE and SERVICES. It is your responsibility to assure that all passwords and login information used to access the SOFTWARE and SERVICES are kept confidential. You are responsible for all electronic communications sent to ShakenSoft, LLC or on our systems and for all uses of the SERVICES and your account data, whether or not authorized by you. ShakenSoft, LLC is entitled to rely on any instructions received by a person using an authorized password or credentials.
5. TRANSMISSION OF DATA.
6. NO WARRANTIES.
ShakenSoft, LLC expressly disclaims any warranty for the SOFTWARE and SERVICES. The SOFTWARE and SERVICES are provided As Is without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness of a particular purpose. ShakenSoft, LLC does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE and SERVICES. ShakenSoft, LLC makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ShakenSoft, LLC further expressly disclaims any warranty or representation to you or to any third party.
7. LIMITATION OF LIABILITY.
In no event shall ShakenSoft, LLC be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of your use of or inability to use the SOFTWARE and SERVICES, even if ShakenSoft, LLC has been advised of the possibility of such damages. In no event will ShakenSoft, LLC be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. ShakenSoft, LLC shall have no liability with respect to the content of the SOFTWARE and SERVICES or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information.
ShakenSoft, LLC’s maximum liability for all claims, losses or damages whatsoever shall not exceed the amount of fees received by ShakenSoft, LLC under these terms during the most recent twelve (12) months.
You will indemnify, defend and hold ShakenSoft, LLC harmless (and ShakenSoft, LLC’s employees, directors, managers, members, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorney's fees) arising out of any claim, action, audit, investigation, inquiry, or other proceedings 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, including without limitation any violation of our policies or any applicable laws, rules or regulations;
(b) your wrongful or improper use of the SOFTWARE or SERVICES;
(c) any transaction submitted by you through the SOFTWARE or SERVICES (including without limitation the accuracy of any product 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 of the United States or any other country; or
(f) any other party’s access and/or use of the SOFTWARE or SERVICES with your user names, password and any other sign on credentials/access controls for the SOFTWARE or SERVICES or any software provided or approved by ShakenSoft, LLC to authenticate access to, and use of, the SOFTWARE or SERVICES.
9. CONSENT TO ELECTRONIC COMMUNICATION.
You agree that ShakenSoft, LLC and its agents and representatives may contact you by electronic communications from time to time to advise you about our SOFTWARE, SERVICES, products and other purposes, whether by telephone, e-mail, SMS, text or other electronic methods, including leaving a detailed recorded message, and expressly consent to the same.
ShakenSoft, LLC has the right to amend these terms at any time, and to change, delete, discontinue or limit any feature or aspect of the SOFTWARE or SERVICES upon such notice as ShakenSoft, LLC deems reasonable from time to time, including by posting it on ShakenSoft’s website. Any use of the SOFTWARE or SERVICES after ShakenSoft, LLC’s notification of any changes shall constitute your agreement to such amended terms.
11. GENERAL TERMS.
These terms (including any links or attachments) constitute the entire agreement between you and ShakenSoft, LLC with respect to your use and access of the SOFTWARE and SERVICES, and exclusive remedy against ShakenSoft, LLC. This EULA is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. The parties agree to submit to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. In the event that any of the provisions of this EULA shall be unenforceable under applicable law, then the remaining provisions of this EULA shall remain in full force and effect, and such provisions shall be interpreted to effect the original intent of the parties as closely as possible. You may not assign this EULA without the prior written consent of ShakenSoft, LLC, but may be assigned by ShakenSoft without restriction. This EULA is binding upon the parties and their respective successors and permitted assigns.
12. CONTACTING SHAKENSOFT, LLC.
If you have any questions about these terms, please contact us at www.pointos.com/contact. All notices to us must be sent in writing to ShakenSoft, LLC, Attn: CEO, 47 Winter Street, Third Floor, Boston, Massachusetts 02108.