Terms & Conditions
These Terms and Conditions of Use were last modified on July 7, 2015.
Access to portions of the Site may require that you agree to additional terms ("Specific Terms") that, together with these Terms will govern your use of the relevant Site portions. Any relevant Specific Terms will be provided to you before you will be granted first access. Your continued access shall constitute your continued acceptance to any relevant Specific Terms.
IMPORTANT! THESE TERMS AND ANY RELEVANT SPECIFIC TERMS GOVERN YOUR USE OF THE SITE AND OUR INTERNET-BASED SUBSCRIPTION MANAGEMENT AND BILLING SOFTWARE SERVICES ("Services"). THESE TERMS AND ANY RELEVANT SPECIFIC TERMS ARE SUBJECT TO CHANGE AT ANY TIME IN COMPANY'S DISCRETION AND YOU ARE ENCOURAGED TO REVIEW THE MOST CURRENT TERMS AND ANY RELEVANT SPECIFIC TERMS EACH TIME YOU VISIT. YOUR USE OF THE SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, DO NOT USE OR ACCESS THE SITE OR USE OUR SERVICES.
OWNERSHIP & LIMITED LICENSE
For so long as you are our customer and paying the Service Fees required by these Terms, myPointOS grants to you a non-exclusive right to use the Site and our Services, subject to the restrictions set forth in these Terms and any other restrictions communicated by us in writing. Nothing in these Terms shall prohibit myPointOS from furnishing our Services to others, including your competitors.
Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Site and our Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without our express written consent. The look and feel of the Site and our Services is copyright © 2012-2015 myPointOS, LLC. All rights reserved. You may not duplicate, copy or reuse any portion of the visual design elements without our express written consent.
RESTRICTIONS ON USE
You may use the Site only for purposes expressly permitted by the Site. You may not use the Site for any other purpose, including any other commercial purpose, without Company's express prior written consent. For example, you may not (and may not authorize any other party to) co-brand the Site or frame the Site without the express prior written permission of an authorized representative of Company.
To obtain full access to the Site and our Services, you will be required to complete a registration. You will be asked to (i) provide certain registration details or other information; (ii) to establish an account specific to you ("Your Account" or "Account") by choosing the Service plan to be provided by us under the terms and pricing set forth; and (iii) to pay a registration fee (not required in all cases). By signing up for Your Account, you agree to pay the fees ("Service Fees") designated for the Service plan you selected.
To create Your Account, Log-In and/or to participate in any services offered by the Site, you must qualify and agree to the conditions set forth below. Failure to qualify and continuously abide by any of the following conditions constitutes a breach of these Terms. Specifically, you agree that:
- You are either (i) the age of legal consent or (ii) you are a minor over the age of thirteen (13) years old and have obtained your parent's (or your legal guardian's) permission, for accessing the Site under the laws of any jurisdictions that apply to you. We expressly reserve the right (but do not have the obligation) to request proof of age, at any time;
- All information that you provide in your registration form for the purposes of establishing Your Account is true and correct and you will promptly notify us of any changes to such information;
- Your Account is for your sole use only and must not be used by any third party. You shall not allow any third party to use Your Account, password, Log-In or User ID to access or use the Site to arrange, enter, and/or participate in services, or for any other purposes. We take no responsibility for any third party access to Your Account. You shall notify us promptly of any unauthorized use of your password and identification and/or breach. You accept responsibility for all activities that occur under Your Account, User ID or password and such use shall be deemed to be use by you;
- You have verified and determined that your use of the Site does not violate any law or regulation in any jurisdiction that applies to you. It is your sole responsibility to ensure that this is the case;
- You will not use the Site for fraudulent or otherwise illegal purposes;
- You understand that we may monitor your Internet access location, without creating an obligation to do so, and may use techniques which are intended to block or restrict access from a jurisdiction in which participation in the Site is illegal or restricted;
- You will not mask your identify in any way, including without limitation, IP masking by accessing the Site over any type of Proxy Server, through IP masking software or the like; and
- You will ensure that all use of Your Account fully complies with these Terms. We may suspend your access to the Site without notice to you in the event that you do not use the Site for an extended period of time.
Your Account must be registered under your current full legal name, your e-mail address, and your current business address. It is your responsibility to keep your e-mail address current. If you need to update your e-mail address, please contact firstname.lastname@example.org.
To access all or some of the Site, You must have previously established a valid Account as provided herein. Further, you must meet all the conditions described throughout these Terms. You agree and understand that we collect data relating to your Log-In, your use of the Site, and Your Account activity and that some of this information may be made public.
VERIFICATION OF ACCOUNT INFORMATION
We reserve the right (but do not undertake the obligation) to conduct a review, at any time, to validate Your Account information, to ensure that your participation in the Site does not breach these Terms and/or any applicable law. You authorize us and our agents to make any inquiries of you and for us to use and disclose to any third party we consider necessary to validate this information. To facilitate the foregoing validation, you agree to provide sufficient information or documentation as we, in our discretion, may request. If you do not provide such information within thirty (30) days of our request, your responses are incomplete or otherwise insufficient, or we cannot verify the information applicable to Your Account, Your Account may be terminated.
All payments to Company for Service Fees for Your Account must be made using means of payment that we may approve from time to time. We currently require payments be made by a major credit card (i.e., VISA & MasterCard). All payments must be made from a payment source on which you are the named Account holder. All payments are not refundable, for any reason.
You will be charged for renewal of your services each month or each year, depending on your plan ("Billing Date"). If we do not receive the full amount of your Service Fees within 15 days of the Billing Date, a late payment charge of 1.5% per month may be added to your bill and immediately become due and payable. You agree to pay us all reasonable attorney's fees and costs incurred by us to collect any past due amounts. Your account will be deactivated without further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within 30 days of cancellation or termination of the Services. We may change our fee structure at any time with thirty (30) days notice.
You agree that we will not be liable for any loss caused by any unauthorized use of your credit card or any other method of payment by a third party in connection with the Site. You waive your right to dispute any payment made into Your Account and you will bear all costs.
Any attempt to defraud the Site through the use of credit cards or other methods of payment, or any failure by you to honor charges or requests for payment will result in immediate termination of Your Account and civil and/or criminal prosecution.
In the case of suspected or fraudulent payment, including use of stolen credentials, by anyone, or any other fraudulent activity, we reserve the right to block Your Account. We shall be entitled to inform any relevant authorities or entities (including credit reference agencies) of any payment fraud or other unlawful activity, and may employ collection services to recover payments.
PROCESSING OF ACCOUNT PAYMENTS
Company may use third party electronic payment processors and/or financial institutions ("ESPs") to process financial transactions. You irrevocably authorize us, as necessary, to instruct such ESPs to handle such transaction and you irrevocably agree that Company may give such instructions on your behalf in accordance with your requests as submitted on the Site. You agree to be bound by the terms and conditions of use of each applicable ESP, and in the event or conflict between these Terms and the ESP's terms and conditions then these Terms shall prevail.
To provide continuous service, myPointOS automatically renews all paid subscriptions upon expiration. Such renewals are generally for the same duration as the original subscription term (for example, a 1-month subscription will renew on a monthly basis, a 1-year subscription will renew on a 1-year basis, and so on). By using the Site, you acknowledge that Your Account will be subject to the above-described automatic renewals. In all cases, if you do not wish Your Account to renew automatically, please follow the directions set out under "Cancellations & Refunds."
CANCELLATIONS & REFUNDS
The purchase an activation of any PointOS Point of Sale software or station upgrade requires a minimum 1 year commitment to a myPointOS Service Plan. Thereafter, you may cancel Your Account at any time, and you will not be charged further; however, you will not receive a refund when you cancel. Directions for cancelling are below.
DIRECTIONS FOR CANCELING YOUR ACCOUNT OR PAID SERVICE PLAN
- Send an email to email@example.com requesting cancellation of your account or service plan.
Your Account or Service Plan will be deactivated after processing, and if applicable, your account data will be scheduled for deletion. Deletion may occur at any time.
MODIFICATION & TERMINATION OF THESE TERMS
We may modify these Terms from time to time. When we do, we will post the updated Terms and will note the date it was last revised. When you use the Site after those updates are posted, you are deemed to accept and agree to be bound by those changes. These Terms will continue to apply until terminated by either you or myPointOS as described below. If you choose to terminate your legal agreement with myPointOS, you may do so by canceling Your Account on the Site.
We may terminate these Terms, terminate your access to all or part of the Site or our Services, or suspend any user's access to all or part of the Site or our Services, at any time, without notice to you, if we believe, in our sole judgment, that you have breached or may breach any term or condition of these Terms, if we believe it is required by law, or otherwise. If we terminate your service, or you terminate the service, you will not be entitled to any refund of any sum you have paid us, and we may delete any User Material or other materials relating to your use of the Site and/or our Services on CompanyÃ¢â‚¬â„¢s servers or otherwise in its possession. You acknowledge that Company shall not be liable to you or any third party for any termination of your access to the Site and/or our Services.
You agree that termination will not relieve you of any obligation to pay any accrued charges. You shall be charged the full amount of the fee for the month in which our Services were terminated. All sections which by their nature should survive the expiration or termination of these Terms shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this agreement.
SERVICE USE & LIMITATIONS
myPointOS +Cloud includes unlimited mobile tableside ordering devices. However, hardware ability may limit the number of devices that can be used simultaneously. When myPointOS Connect is installed on a standard PointOS-provided POS terminal, PointOS will provide support for up to 3 devices per location. When installed on a dedicated PointOS-provided backoffice server with at least 4GB RAM and additional PointOS license, PointOS will provide support for up to 10 devices per location. PointOS reserves the right to refuse support for tableside ordering apps on customer provided hardware. Contact sales for supported hardware options.
myPointOS +Cloud features may not be available outside of the United States.
We will make reasonable efforts to keep the Services operational 24 hours a day, 7 days a week, except for: (i) planned downtime (for which we will provide at least 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
myPointOS is a subscription service for PointOS support, upgrades and web-based features. You acknowledge and agree that: (i) we will not be processing payment transactions on your or your customersÃ¢â‚¬â„¢ behalf; (ii) we are not a bank or other chartered depository institution; and (iii) we will not hold any monies for you or your customers. Accordingly, you agree that we will not be responsible or liable for any amounts related to any credit-card or online payment transaction.
We will be sending information to your payment gateway service provider; however, we make no representation as to the availability of your payment gateway service provider, and we are not responsible for any downtime or system outage of your payment gateway service provider. Furthermore, we make no guarantee that you will be successfully underwritten and approved by a merchant service provider. If you are not approved by a merchant service provider, you will be unable to full advantage of myPointOSÃ¢â‚¬â„¢s functionality.
NO WARRANTY; DISCLAIMER & LIMITATION OF LIABILITY
We have no obligation to check whether users are using the Site in accordance with these Terms or any other agreement.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data. We do not assume any responsibility or risk for your use of the Internet.
OUR SERVICES AND ALL MATERIALS ON THE SITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY OF THE MATERIAL ON THE SITE, OR ON ANY WEBSITE OR WEBSITES "LINKED" TO THE SITE. COMPANY MAKES NO WARRANTY THAT THE SITE AND OUR SERVICES WILL BE AVAILABLE, UNINTERRUPTED, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS AFFILIATES, CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES HAVE ANY LIABILITY TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR OUR SERVICES OR YOUR INABILITY TO USE THE SITE, OUR SERVICES, SITE CONTENT, OR ANY PRODUCTS OR SERVICES, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE SYSTEM FAILURE, LOSS OF DATA, OR LOSS OF USE RELATED TO THE SITE, OUR SERVICES, OR ANY WEBSITE OPERATED BY ANY THIRD PARTY.
IF YOU ARE DISSATISFIED WITH US, THE SITE, OUR SERVICES, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITE AND OUR SERVICES.
You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of the Site or our Services. You hereby release Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to our Site or our Services. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
You agree to defend, indemnify and hold Company, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the "Indemnified Parties") from and against any and all liability, loss or damage, cost or expense, including but not limited to court costs, attorneys' fees, and any awards or damages caused by, relating to or incident to: (a) your use of our Services; (b) the Site; (c) claims by your customers or payment gateway service provider; or (d) the products and/or services offered through the Site.
THIRD PARTY WEBSITES
We may provide links and pointers to Internet sites maintained by others who are independent from Company ("Third Party Sites"). We have not reviewed all of the Third Party Sites linked to the Site and are not responsible for the content of or any products or services offered on such Third Party Sites. Company makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such website. Your linking to any other website is at your own risk.
From time to time, Company may display or otherwise make available promotions, advertisements and/or offers provided by third parties ("Third Party Promotions"). You understand and agree to hold Company harmless and agree that Company shall have no liability whatsoever for such Third Party Promotions. If you participate in, click on, or otherwise link to such Third Party Promotions you do so solely at your own risk. Your sole remedy in connection with such Third Party Promotions will be with the third party.
UNITED STATES ONLY
All materials on the Site are provided solely for the purpose of promoting our operations and products in the United States and its territories. We make no representation that the products and services on the Site are appropriate or available for use in other locations. If, despite these conditions, you use the Site or our Services from outside the United States, you are solely responsible for compliance with any applicable local laws.
YOU AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC THIRD PARTY MATERIALS ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE THIRD PARTY MATERIALS, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS, THE SITE, THE USER CONTENT, SITE CONTENT, AND THIRD PARTY MATERIALS (INCLUDING YOUR VISIT TO OR USE OF THE SITE) SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark, or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought before, during, or after the pendency of any arbitration proceeding brought pursuant to these Terms, or in lieu of such proceedings.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules (collectively the "AAA Rules"), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The arbitration shall be held in Vero Beach, Florida USA, at a locale to be proposed by Company, and the allocation of costs and fees for the arbitration shall be determined in accordance with the AAA Rules and shall be subject to the limitations in these Terms. In rendering a decision, the arbitration panel shall follow the law of the United States and of the State of Florida, and shall not use equitable or other principles which would permit the panel to ignore these Terms or the law. The arbitration panel's award shall be binding and may be entered as a judgment in any court of competent jurisdiction, provided, however, that errors of law may be appealed to a court of competent jurisdiction for review. Any award in arbitration shall be subject to all dollar and other limitations set forth in these Terms.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action, or proceeding by you related in any way to the Site (including your visit to or use of the Site) be instituted more than one (1) year after the cause of action arose.
These Terms shall be governed by the laws of the State of Florida without giving effect to any choice or conflict of law or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Florida, provided, however, that disputes concerning patent, federal trademark, or federal copyright matters shall be governed by federal law. You consent to jurisdiction and venue in the state or federal courts of the State of Florida.
TRADEMARKS, TRADE NAMES, AND SERVICE MARKS
Unless otherwise indicated, all logos, names, package designs, and marks on the Site are trademarks or service marks owned or used under license by us or our business partners. The use or misuse of any of these marks or other information is strictly prohibited.
We grant you permission to print individual pages from the Site, unless otherwise expressly noted, for your noncommercial use in learning about and evaluating the services or products offered on the Site. No other permission is granted to you to print, copy, reproduce, distribute, license, transfer, sell, transmit, upload, download, store, display in public, alter, modify, or create derivative works of these materials.
This grant of permission is not a transfer of title, and under this permission you may not: use the materials for any commercial purpose, or for any public display (commercial or noncommercial); remove any copyright, trademark, or other proprietary notations from the materials; or transfer the materials to another person or "mirror" the materials on any other server, except as permitted by law.
We make no warranties or representations to you that your use of any materials displayed on the Site will not infringe the rights of third parties. In addition, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the content. Modification or use of this content except as expressly provided in these Terms violates Company's intellectual property rights. Neither title nor intellectual property rights are transferred to you by your access to the Site.
COPYRIGHT & INTELLECTUAL PROPERTY
Company understands the value and importance of intellectual property rights and makes every effort to respect the legitimate intellectual property rights of others. Company does not review all of the material posted on or submitted through the Site and has no responsibility for any content that you may find or access when using Company's Site, products or services.
Company takes all concerns related to intellectual property seriously and it is our policy, at our discretion and in appropriate circumstances, to cancel, disable or terminate any user's Account who infringes or appear to infringes the intellectual property rights of others.
If you believe that any material on this website infringes a copyright, or any valid intellectual property right, please provide the following information to our DMCA Agent.
- A physical or electronic signature that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on our website;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please provide this information to Company's DMCA Agent, who can be reached as follows:
By E-Mail: firstname.lastname@example.org
Due to IT concerns, attachments cannot be accepted on notices sent via e-mail. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed. Our reply will indicate instructions for submitting attachments.