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EULA

 

This EULA was last updated on 1st November 2021, with changes taking effect at midnight (in your Time zone) on 1st December 2021 or immediately for new Subscribers to Aptimyz after 1st November 2021.

 

Terms

 

This EULA, together with our Privacy Policy and Acceptable Use Policy (“Terms”) set out the terms and conditions for your use of the Aptimyz Services. In using the Aptimyz Services, you acknowledge that you have read, understood, and have agreed to these Terms, including on behalf of any person or entity for whom you are using the Aptimyz Services.

 

From time to time, we will need to update these Terms and we encourage you to check them regularly so that you stay informed. If you do not agree to any of these Terms, including any updates, then you must cease use of the Aptimyz Services.

 

Definitions

 

To help you read and understand these Terms, we’ve set out definitions of some key terms below:

 

Customer” means the person or entity who registers to use the Aptimyz Service by creating an Aptimyz account. If an individual creates an account on behalf of their employer, then the employer will be deemed to be the Customer, and will be bound by these Terms.

 

Authorised User” means any person or entity that a Customer authorises to use the Aptimyz Service on its behalf. This includes the Primary Admin (as nominated by the Customer) and other employees and personnel of the Customer who are authorised to use the Aptimyz Services on the Customer’s behalf, but also includes support partners and other third parties with whom a Customer shares its Aptimyz account details (and for whose conduct the Customer is responsible).

 

We” or “Aptimyz” means Aptimyz Retail Limited (Irish companies registration office number 561769).

 

Aptimyz Service” means Aptimyz’s point of sale software and back office management products and services, and any features, technologies or functionality provided by those products or services, offered by us from time to time, including the Aptimyz iOS & Android applications (“Apps”) and aptimyz.com (“Website“). Your use of the Aptimyz Service will also be subject to any allowances and/or limits that apply to the Aptimyz plan which you’ve purchased.

 

You” means the Customer and (where the context permits) includes any Authorised Users.

 

Account information

 

You must be 18 years or older in order to access and use the Aptimyz Services. You agree to provide true, accurate, current and complete account information, and to maintain and promptly update your account information in order to ensure that it remains true, accurate, current and complete. We will use that information to contact you from time to time (including by sending you notices as required by these Terms relating to for example, suspension of your account or changes to your plan), so it’s important that you keep all of your contact details, and those of your Primary Admin and other Authorised Users, up to date.

 

You represent and warrant that you are not located in any U.S. embargoed countries or on any U.S. Government list of prohibited or restricted parties.

 

Use of your account

 

Aptimyz grants you a limited, non-exclusive, non-transferable, revocable licence to use the Aptimyz Services (subject to your account type) for the purposes of with the Customer’s business and in accordance with these Terms.

 

You are responsible for any conduct or activity undertaken in your account (whether online or by calling our contact centre), including any changes made, and the input or modification of or access to any data or information in your account, by any of your Authorised Users. In particular, our primary point of contact with you will be your nominated Primary Admin, who will be considered as authorised by you to make changes, give instructions and receive notices on your behalf.

 

If:

 

  • you are an Authorised User using or accessing the Aptimyz Services for the benefit of a Customer, then you are responsible for ensuring you have the right to do so from the relevant Customer (including all necessary authorisations to access, amend or remove data, or make changes to the Customer’s account); or
  • you are a Customer, then you are responsible for authorising use or access of the Aptimyz Services by any Authorised User and will indemnify Aptimyz against any claims or loss relating to any Authorised User’s use of or access to your account.

 

We will have no responsibility to anyone other than the Customer, and the Aptimyz Services and these Terms are intended solely for the benefit of the Customer and not for any Authorised User(s).

 

 

Cancellation of accounts

 

We can cancel or suspend your account at any time on written notice to you. Such termination will be effective at the end of your then-current paid-up subscription period. We may also cancel or suspend your account immediately if, in our sole discretion:

  • you have committed a material or persistent breach of these Terms or any other terms applying to your use of the Aptimyz Services;
  • we consider that provision of the Aptimyz Services, or use of them, in your territory or jurisdiction will or is likely to breach any applicable law;
  • we decide to withdraw the Aptimyz Services from your territory or jurisdiction altogether; or you fail to comply with any limits or restrictions applicable to your Aptimyz subscription.

 

You are entitled to cancel your account with Aptimyz at any time. You may cancel your account by following the prompts when you are logged into your account through the Website. If you cancel your account before the end of your current paid up month or year, your cancellation will take effect immediately and you will not be entitled to any refund of Fees paid in advance (unless we agree otherwise).

 

If your account is cancelled, your account will be deactivated and all of your rights granted under these Terms will immediately come to an end (except to the extent that it is necessary for them to continue in respect of our ongoing storage of your data up to the date of permanent deletion). We are not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is exported, backed-up or replicated before cancellation.

 

Fees and taxes

 

The fees charged for use of the Aptimyz Services are set out in the Clover App store and on the Website (or as notified to you in the case of some exclusive plans) (“Fees”) and are subject to change. We can change the Fees, and/or introduce new pricing packages and terms, at any time by giving you 30 days’ prior notice (by email to your Primary Admin or by displaying a message the next time you use the Aptimyz Services). The new Fees or pricing/package terms will apply to you from expiry of that notice, unless you choose to cancel your account before the changes take effect. Also, the new Fees will apply to you immediately if you choose to change your plan/package (or if you reactivate your plan after cancellation). Fees are charged in advance on a monthly and are non-refundable, including if you only use part of a month’s subscription for the Aptimyz Services. If you do not want your subscription to renew at the end of your then-current paid-up subscription period, you must cancel your account in the Clover App store before the end of your then-current paid-up subscription period. You, the customer are responsible for the action of cancelling your subscription. Unless required by law, we will not provide refunds in connection with the Aptimyz Services.

 

Unless otherwise stated, Fees are exclusive of all taxes, and you are responsible for any taxes that may arise. You indemnify and hold Aptimyz harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest. If you are required to withhold or deduct tax from the Fees, you will pay Aptimyz such additional amounts as are necessary to ensure receipt of the full amount which would have been received but for the deduction.

 

Plan Limits and reasonable use

 

The Aptimyz Service is available for subscription in the Clover App store, giving you to sign up on a per store basic. We may update those plan limits at any time (e.g., by introducing pricing tiers based on store numbers, device numbers etc.) by updating the plan descriptions on our Website (or as notified to you, in the case of some exclusive plans). You’ll be expected to comply with the updated plan limits from the next time you use the Aptimyz Service. You agree that we may use information generated by your use of the Services (e.g., transaction volume and revenue) for the purposes of determining the most appropriate plan and pricing for you.

 

We may ask you to upgrade your Aptimyz subscription to a new plan if you exceed the limits that apply to your plan at any time.

 

We also reserve the right to suspend or restrict your account or your use of the Aptimyz Service, or disable any third party integrations you have, where we believe that your use isn’t fair or reasonable or that it may cause degradation of the Aptimyz Services to other users. This includes circumstances where your use (or integration of your account with a third party) is creating a security or availability risk for Aptimyz or our other customers, is impacting (or may impact) the stability or performance of our systems, or is requiring disproportionate resource to deliver (e.g., in terms of storage or processing requirements, support requests or helpdesk queries). If you’re using a free plan, then in addition to the other terms and conditions set out in these Terms, there are some other conditions that apply to you:

  • Free plans are subject to published maximum usage period (which may change from time to time).After the published maximum usage period, you may be asked if you want to cancel your account or upgrade to a paid plan.
  • If you don’t use or log in to your Aptimyz account for six (6) months, then we may treat your account as “inactive” and permanently delete your account (and all data associated with it) on 30 days’ notice to you.

 

Aptimyz Services are provided “as is”

 

The Aptimyz Services are provided on an “as is” and “as available” basis, and your use of them is at your sole risk. In particular, it is your sole responsibility to ensure that your use of the Aptimyz Services complies with any laws or regulations applicable to you and your business, and allows you to meet any legal obligations you might have. Such laws might include requirements regarding the retention or storage location of accounting, taxation and/or transaction records. We make no representation or warranty regarding your ability to comply with laws applicable to you when you use the Aptimyz Service.

 

We will try to promptly address (during normal business hours) all technical issues that arise in connection with the Aptimyz Services.

 

We do not warrant that: (a) the Aptimyz Services will meet your specific requirements; (b) the Aptimyz Services will be uninterrupted, timely, secure, or error-free; (c) the Aptimyz Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the Aptimyz Services will meet your expectations; or (e) any errors in the Aptimyz Services will be corrected.

 

You acknowledge that Aptimyz may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the Aptimyz Services. The acts and omissions of those third party suppliers may be outside of Aptimyz’s control, and Aptimyz does not accept any liability for any loss or damage suffered as a result of any act or omission of any third party supplier, save as otherwise expressly set out in the Agreement or in writing between the parties.

 

On behalf of itself and such third party suppliers, Aptimyz excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.

 

From time to time, we may add, make changes to or remove altogether features or functionality of the Aptimyz Services. If you’re using an App, you may need to install a new or updated version before you can receive the benefit of those changes. We may also decide to cease providing all or some of the Aptimyz Services at any time, and nothing in these Terms is to be taken as a guarantee that the Apps or any Aptimyz Services will always be available, either in its current form or at all, or that we will support, maintain or continue to offer the Aptimyz Services, or the Apps or any version of them.

 

Our liability is limited

 

To the maximum extent permitted by law, Aptimyz shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill, use, data or other intangible losses (even if Aptimyz has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service (in whole or in part) or any technical malfunctions; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to, or alteration of, your communications or data; (d) statements or conduct of any third party regarding the Aptimyz Services; or (e) any other matter relating to the Aptimyz Services.

 

In any case, Aptimyz’s maximum aggregate liability under or in connection with these Terms or your use of the Aptimyz Services is limited to the amount of Fees paid by you in the past 12 months.

 

 

You are responsible for your use of the Aptimyz Service and you indemnify us

 

You are responsible for all activity that results from use of the Aptimyz Services through your account. You are responsible for maintaining the security of your account and password. Aptimyz will not be liable for any loss or damage that may result from any failure to keep User names and passwords secure.

 

You indemnify Aptimyz against all forms of liability, actions, proceedings, demands, costs, charges and expenses which Aptimyz may incur or suffer as a result of use of the Aptimyz Services through your account or as a result of your failure to comply with these Terms.

 

Reasonable use policy

 

You agree to use the Aptimyz Services in a reasonable way. If we determine that your use of the Aptimyz Services is not reasonable or that your use is causing degraded performance of the Aptimyz Services for you or for other Users, we may impose limits on your use of the Aptimyz Services. Where possible, we will endeavour to give you at least 24 hours prior notice and request that your usage is reduced before imposing any limits.

 

Limits on your use of the Aptimyz Services may include (but are not limited to) the quantities and volumes of the following parameters, per retailer: (a) storage required to host and backup retailer data; (b) sales transactions per calendar month; (c) API (application programming interface) calls per five (5) minute period; (d) page views per five (5) minute period; (e) bandwidth usage per twenty four (24) hour period; (f) support tickets opened per calendar month; or (g) outlets, registers, users, products and customers.

 

Intellectual property

 

You agree that Aptimyz owns all of the intellectual property rights existing in the Aptimyz Services. You agree not to challenge or do anything inconsistent with such ownership. You may not publish or use Aptimyz’s brand, branding or logos except with Aptimyz’s prior written consent.

You grant Aptimyz a royalty-free, irrevocable, perpetual licence to use for our business purposes (including for product improvement, research and development, data analytics and other legitimate commercial purposes) information and/or data collected by Aptimyz through your use of the Aptimyz Services (provided that we aggregate or anonymise any information or data which you have submitted or inputted into the Services that we process on your behalf). Other than this right, Aptimyz claims no intellectual property rights in relation to the information or content you input into the Aptimyz Services.

 

You may provide us with comments, feedback or suggestions on Aptimyz Services, and you agree that we will be free to use, modify and incorporate such suggestions without any obligation to you.

 

Data protection

 

We will maintain appropriate technical and organizational measures to protect the security of the data or content that you input into the Aptimyz Services.

 

You are responsible for complying with all applicable data protection laws in respect of your use of the Aptimyz Services and with regard to any instructions you issue to Aptimyz with regard to the processing of personal data you provide to Aptimyz through the Services. In particular, you must ensure you have properly informed and obtained all necessary rights, authorizations or consents from any end-users, consumers, personnel or other individuals to whom the data relates, to enable Aptimyz to lawfully access their personal data under these Terms and to process their personal data outside of their country of residence.

 

You shall not provide (nor permit any User to provide) any Sensitive Data to Aptimyz. For the purpose of these Terms, “Sensitive Data” shall mean data revealing a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetics, biometrics, health data, data about sex life or sexual orientation, or data about criminal convictions and offences.

 

If you are in the European Union and your use of the Aptimyz Services requires us to process personal data falling within the scope of the EU General Data Protection Regulation 2016/679,then you can download and execute our Data Processing Addendum (“DPA”). Once executed, the DPA shall apply to processing of such personal data and shall hereby be incorporated by reference.

 

Third Party Integration Partners

 

You acknowledge that in the provision of certain optional features and services, Aptimyz, on receipt of instructions from you, may be required to transfer certain data held in your Aptimyz account to, and otherwise interact with, third party partners who provide services that you have elected to integrate with the Aptimyz Services (“Third Party Integration Partners”).

 

You agree that if and to the extent such data transfer occurs, it is on your express election and instruction by virtue of you agreeing to use the Third Party Integration Partner’s services. You are solely responsible for compliance with all applicable laws (including applicable data protection laws) in respect of the transfer of the data by Aptimyz to the Third Party Integration Partner, and for entering into separate contractual agreements with the Third Party Integration Partner. Aptimyz is in no way liable for the provision of the services or the handling and processing of any data by the Third Party Integration Partner. For the avoidance of doubt, such third parties are not Aptimyz’s sub processors for data protection purposes.

 

Data deletion

 

On expiry or termination of these Terms, or upon cancellation of your account, the data submitted by you to the Aptimyz Services will be deleted after 180 days, unless applicable laws or regulations require Aptimyz to retain the data for a longer period. To the extent that we continue to hold the data, it shall be securely isolated and protected from further processing except to the extent required by applicable law.

 

Disputes

 

If there is a dispute between the parties in relation to these Terms (or any previous version of them), either party must give the other party notice of the nature and details of the dispute, and neither party will commence any court or arbitration proceedings until the procedure described in this section has been complied with.

 

All disputes which arise between the parties in connection with this agreement, or the subject matter of this agreement, shall be referred to mediation facilitated by a mediator. The mediator will be chosen by agreement between the parties. In default of agreement, a mediator will be nominated by the Dublin Resolution Centre or in the event of it being unwilling or unable to do so by Law Society of Ireland. These provisions shall apply also to the nomination (whether by agreement or otherwise) of any replacement mediator where the original mediator (or any replacement) is conflicted from acting as mediator, or has been removed by Order of the High Court, or refuses to act, or is incapable of acting or dies

 

In default of resolution at the mediation, the dispute shall be determined by an arbitrator agreed by the parties (including the mediator if the parties and mediator agree or, in default of agreement, appointed by the Dublin Resolution Centre or in the event of the Dublin Resolution Centre being unwilling or unable to do so by the Law Society of Ireland provided always that these provisions shall apply also to the appointment (whether by agreement or otherwise) of any replacement arbitrator where the original arbitrator (or any replacement) has been removed by Order of the High Court, or refuses to act, or is incapable of acting or dies.

 

General

 

We work with a number of partners, value added resellers and other third parties to promote, market and integrate other products and services with the Aptimyz Services. In some cases, we may receive a commission from those partners and third parties for referring our customers to them, or we may pay a commission to third parties where customers are referred to us.

 

If we don’t insist that you perform any of your obligations under these Terms, or if we do not immediately enforce our rights against you, 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.

 

The Aptimyz Services are provided for use in business, so you are not a consumer. To the maximum extent permitted by law, any statutory or other consumer protection provisions (including in the Sale of Goods and Supply of Services Act) do not apply to the Aptimyz Services, these Terms or our relationship with you.

 

Each clause in these Terms 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.

 

You are not permitted to assign, sub-licence, novate or transfer these Terms or any of the rights licensed under them. These Terms shall be governed by Irish law, and (subject to the ‘Disputes’ section above) you submit to the exclusive jurisdiction of the Irish courts for any matter or dispute arising in relation to these Terms.

 

 

Additional Terms for Apple or Google App Store downloads

 

If you have downloaded an App from the Apple or Google App Store, the following additional terms and conditions apply:

 

These Terms are solely between you and Aptimyz, and not with Apple or Google. We (and not Apple or Google) are solely responsible for the App and its content (subject to these Terms). You acknowledge that Apple or Google has no obligation to furnish any maintenance or support services to you in connection with the App.

 

In the event of any failure of the App to conform to any warranty that might be contained or implied into these Terms, you may notify Apple or Google, and Apple or Google will refund the purchase price (if any) for the App. Except for the fore going, to the maximum extent permitted by applicable law, Apple or Google will have no other warranty obligation whatsoever with respect to the App.

 

Any claim in connection with the App related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by these Terms, and neither Apple or Google is not responsible for such claims.

 

You must comply with the App Store Terms of use, including the Usage Rules.

 

Apple, Google and their subsidiaries are third party beneficiaries to these Terms and, upon your acceptance of them, Apple and Google will have the right to enforce these Terms against you.

All other terms and conditions of these Terms apply to your use of the App.

 

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