END USER LICENSING AGREEMENTEULA
This End-User License Agreement is a legal agreement (hereinafter “EULA”) between you, either individually or collectively on behalf of a single entity, (hereinafter, “you”) and TakuLabs Inc. (“TakuLabs”). This EULA covers all web and mobile application software, product applications, application packages, source & object code, associated media, any printed materials, data, files and information, services plus any accompanying “online” or electronic documentation (collectively, the “POS Software & Services”) that have been provided to you by TakuLabs from any of the TakuLabs websites/web applications (www.takulabs.io, www.takuretail.app), the Apple App Store, the GooglePlay store or any other digital distribution service, including Beta stores (the Apple App Store, GooglePlay store and any such digital distribution service, the “App Stores”). This version of TakuLabs’ EULA takes precedence over any other EULA relating to TakuLabs’ products and services and/or terms embedded within the POS Software & Services, unless otherwise specifically superseded in writing.
1. Access to POS Software & Services
If the POS Software & Services are an alpha or beta version, hereinafter referred to as the “beta application” or “beta version” and not generally available to date, TakuLabs does not guarantee that the generally available release will be identical to the beta application or that the generally available release will not require updating or reinstallation. You agree that if you use the POS Software & Services or if otherwise required by TakuLabs, you shall provide TakuLabs with specific information concerning your experiences with the operation of the POS Software & Services. You agree and acknowledge that the beta version of the POS Software & Services (a) is to be used only for testing purposes and not to perform any other activities unless TakuLabs shall have otherwise approved in writing and (b) has not been tested or debugged and is experimental and that the documentation may be in draft form and will, in many cases, be incomplete. You agree that TakuLabs makes no representations regarding the completeness, accuracy or your use or operation of the beta version of the POS Software & Services. BETA APPLICATIONS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF TITLE OR NON-INFRINGEMENT.
2. Assent to Be Bound
3. Ownership of POS Software & Services
Title to the POS Software & Services and all copies thereof remain with TakuLabs and/or its suppliers. You agree to prevent any unauthorized copying of the POS Software & Services within your control (and to report such to TakuLabs, if not in your control). Except as expressly provided herein, TakuLabs does not grant any express or implied right to you under TakuLabs patents, copyrights, trademarks or trade secret information.
4. Grant of POS Software & Services License
Subject to compliance with the terms and conditions of this EULA, TakuLabs grants to you a non-exclusive, non-transferable, personal, limited-use license – without the right to sublicense (the “License”) – to use the POS Software & Services solely for the purpose of helping you sell goods and services to buyers, whether in person, online, or both. You may not: (i) modify or create any derivative works of any POS Software & Services or documentation (any code written by TakuLabs for the POS Software & Services to published application programming interfaces – APIs – shall be deemed part of the POS Software & Services and included in this License); (ii) copy the POS Software & Services, except as provided in this EULA or elsewhere by TakuLabs; (iii) separate POS Software & Services, which is licensed as a single product, into its component parts; (iv) sublicense or permit simultaneous use of the POS Software & Services under your Account by more than the authorized paid users; (v) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the POS Software & Services (except to the extent applicable laws specifically prohibit such restriction); (vi) redistribute, encumber, sell, rent, lease, sublicense, use the POS Software & Services in a timesharing or service bureau arrangement, or otherwise transfer rights to any POS Software & Services under any circumstances; (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the POS Software & Services; (viii) publish any results of benchmark tests run on the POS Software & Services to a third party without TakuLabs’ prior written consent; (ix) access or use the POS Software & Services or Documentation for any competitive purposes (e.g. to gain competitive intelligence; to design or build a competitive product or service, or a product providing features, functions or graphics similar to those used or provided by TakuLabs; to copy any features, functions or graphics; or to monitor availability, performance or functionality for competitive purposes); or (x) use any “locked” or key restricted feature, function or capability without first purchasing the applicable license and obtaining a valid key, even if such feature, function or capability is enabled without a key; (xi) use any POS Software & Services on a system with more CPUs than the number licensed, by more users than have been licensed, on more computers or computing devices than the number licensed, or by more developers than the number licensed, as applicable.
You are solely responsible for accessing or installing the POS Software & Services. You are responsible and liable for all uses of the POS Software & Services and Documentation through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the POS Software & Services and Documentation by your authorized users or by any other person or entity to whom you may, directly or indirectly, provide access to or use of the POS Software & Services and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
You acknowledge that the POS Software & Services may contain copyrighted software of third parties that are obtained under a license from such parties (“Third Party Software”). All third party licensors retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation any end user license agreement.
5. Ownership and Consent to Collection and Use of Data
(a) Personally-identifiable information. You own all personally-identifiable information, as well as all data tracked by the POS Software & Services regarding (a) end-customer data; (b) inventory data; (c) supply chain data; (d) marketing data; (e) sales data; and/or (f) product data (“Tracked Data”). For greater certainty, all information that is personally identifiable to you or which cannot be separate from your personally identifiable information belongs to you and will be kept confidential in accordance with all applicable regulations related thereto. You hereby acknowledge and agree that if you choose to export your Tracked Data to a party other than yourself that: (i) you accept all responsibility for sharing of such information; and (ii) you hereby absolve and relieve TakuLabs of any responsibility or liability associated with maintaining privacy of the data that you exported.
6. Monitoring of POS Software & Services
(a) Authentication System. The POS Software & Services contains technological measures that are designed to prevent unlicensed or illegal use of the POS Software & Services (collectively, the “Authentication System”). You acknowledge and agree that such Authentication System allows TakuLabs to (among other things) (a) monitor use of the POS Software & Services by you as set forth in Section 5(b); (b) suspend or disable access to the POS Software & Services in whole or in part in the event of a breach of this EULA; and (c) terminate use of the POS Software & Services upon the expiration or termination of this EULA. You agree not to thwart, interfere with, circumvent or block the operation of any aspect of the Authentication System, including any communications between the POS Software & Services and TakuLabs’ servers. For the avoidance of doubt, the POS Software & Services will not operate unless TakuLabs from time to time verifies the POS Software & Services using the Authentication System which requires the exchange of information between you and TakuLabs over the Internet.
(b) Updates. The POS Software & Services (whether obtained from the TakuLabs website/web application and/or any App Store) may automatically refresh, download and install updates from time to time from TakuLabs. These updates are designed to improve, enhance and further develop the POS Software & Services and may take the form of bug fixes, enhanced functions, new software modules, completely new versions and additional products and services offered through or from the POS Software & Services. You agree to receive such updates (and permit TakuLabs to deliver these to you) as a condition to your use of the POS Software & Services.
7. Intellectual Property
(a) Ownership. TakuLabs owns all right, title and interest, including all trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing (collectively, “Intellectual Property Rights”), in and to, (a) the POS Software & Services; (b) all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of TakuLabs including without limitation, TakuLabs, TAKU Retail, the TakuLabs logo and the TAKU Retail logo (collectively, the “Trademarks”); (c) Anonymous Usage Data; and (d) any and all Submissions (as defined herein) (collectively, “TakuLabs IP Rights”).
(b) Trademarks & Domain Names. This EULA does not authorize you to reproduce, duplicate, copy, sell, resell or exploit the Trademarks. If you wish to use the Trademarks, you must obtain a written license to use the Trademarks from TakuLabs. Additionally, you will not (a) assert any Intellectual Property Rights in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest TakuLabs’ ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.
(c) No Implied License or Ownership. Nothing in this EULA or the performance thereof, or that might otherwise be implied by law, will operate to grant you any right, title or interest, implied or otherwise, in or to the TakuLabs IP Rights.
(d) No Contest. You acknowledge and agree that the TakuLabs IP Rights are and shall remain the sole and exclusive property of TakuLabs. You agree that you shall never oppose, seek to cancel, or otherwise contest TakuLabs’ ownership of the TakuLabs IP Rights or act in any manner that would or might conflict with or compromise TakuLabs’ ownership of the TakuLabs IP Rights, or similarly affect the value of the TakuLabs IP Rights. Whenever requested by TakuLabs, you shall execute such documents as TakuLabs may deem necessary or appropriate to confirm, maintain or perfect TakuLabs’ ownership of the TakuLabs IP Rights. In the event TakuLabs is unable, after using its reasonable endeavours (which shall not require TakuLabs to incur any costs), to secure your signature on any document or documents needed to apply for or to confirm, maintain or perfect TakuLabs’ ownership of the TakuLabs IP Rights for any other reason whatsoever, you hereby irrevocably designate and appoint TakuLabs as your duly authorized attorney-in-fact, to act for and on your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect TakuLabs’ ownership of the TakuLabs IP Rights with the same legal force and effect as if executed by you. In the event you become aware that any third party is, or may be, infringing the TakuLabs IP Rights, you agree to notify TakuLabs of such fact.
(e) Proprietary Notices. Third party trademarks, trade names, product names and logos included in the POS Software & Services may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the POS Software & Services.
(f) Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to TakuLabs concerning the POS Software & Services, or any of TakuLabs’ products or services, you agree that: (a) your Submissions will automatically become the property of TakuLabs, without any compensation to you; (b) TakuLabs may use or redistribute the Submissions for any purpose and in any way; (c) TakuLabs is not obligated to review any Submissions; and (d) TakuLabs is not obligated to keep any Submissions confidential. In addition, any illegal, lewd, abusive, profane or otherwise disturbing submissions by you shall constitute a material breach of this EULA giving rise to TakuLabs’ termination rights herein.
8. Term and Termination of this EULA
The Term of this EULA shall commence upon registration for access to the POS Software & Services and your accent to be bound, pursuant to Section 2 herein, and shall continue until terminated by either party. TakuLabs may terminate this EULA and your use of the POS Software & Services at any time for breach of any provision contained herein. You may terminate this EULA at any time by terminating your subscription for the POS Software & Services pursuant to the terms of the agreement governing such subscription. Upon expiration or termination of this EULA, the rights and licenses granted to you hereunder shall immediately terminate, and you shall immediately cease using the POS Software & Services, and will return to TakuLabs (or, at TakuLabs’ request, destroy) any other tangible items in your possession or control that are proprietary to TakuLabs or contain Confidential Information (as defined herein). If you choose to terminate your subscription to the POS Software & Services, then TakuLabs may, within a 90 day period, permanently remove all of your personally identifiable information from all of its systems in accordance with industry best practices and such information may not be recoverable. Prior to the permanent removal of your personally identifiable information, you will receive notice of the impending removal 30 days prior to removal. Prior to removal, you will have the right to export all of your personally identifiable information. All of your non-personally identifiable data and logs will be retained by TakuLabs in completely anonymized form for use by TakuLabs as it solely deems and at any time.
The following sections shall survive the termination or expiration of this EULA for any reason: Section 6 (Monitoring of POS Software & Services), Section 7 (Intellectual Property Rights), Section 8 (Term and Termination), Section 11 (Disclaimer), Section 14 (Limitation on Liability), Section 15 (Indemnification) and Sections 18 and 19.
The POS Software & Services contain Confidential Information. You will not disclose information about the POS Software & Services or any comments regarding the POS Software & Services to any third party without the prior written approval of TakuLabs. You will maintain the confidentiality of the POS Software & Services with at least the same degree of care that you use to protect your own confidential and proprietary information, but not less than a reasonable degree of care under the circumstances. You will not be liable for disclosure of Confidential Information which is: (i) in the public domain, other than by breach of this EULA on your part; or (ii) rightfully received from a third party without any obligation of confidentiality; or (iii) rightfully known to you without any limitation on use or disclosure prior to its receipt from TakuLabs; or (iv) independently developed by you; or (v) generally made available to third parties by TakuLabs without restriction on disclosure. You agree that disclosure or use of Confidential Information contrary to this EULA may cause TakuLabs irreparable harm, for which damages may not be adequate compensation. Therefore, you agree that TakuLabs may be entitled to equitable relief, including an injunction, in order to stop any breach or threatened breach of this EULA.
10. Return of Confidential Information
Upon termination of this EULA, or at either party’s request, if either party is in receipt of any physical Confidential Information of the other, then such party shall deliver to the disclosing party all files, documents, computer programs and other media (and all copies and reproductions of the foregoing) in its possession or control to the extent same contain Confidential Information. Upon the request of either party, the other party shall certify in writing that all materials containing Confidential Information (including all copies thereof) have been returned to the party disclosing such Confidential Information.
THE POS SOFTWARE & SERVICES LICENSED HEREUNDER MAY CONTAIN DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE POS SOFTWARE & SERVICES AND/OR ACCOMPANYING MATERIALS. TAKULABS PROVIDES NO ASSURANCE THAT ANY SPECIFIC ERRORS OR DISCREPANCIES IN THE SOFTWARE WILL BE CORRECTED.
12. No License or Representation
This EULA does not require TakuLabs to disclose any Confidential Information. All Confidential Information shall remain the sole property of the party disclosing such information. No license for any trademark, patent, copyright or any other intellectual property right is either granted to you or implied by this EULA or any disclosure hereunder. All Confidential Information disclosed by TakuLabs is on an “as is” basis, and no representation, warranty or assurance is made by TakuLabs with respect to the completeness, accuracy, non-infringement of trademarks, patents, copyrights, trade secrets or any other intellectual property rights or other rights of third parties. TakuLabs will not be liable for any damages arising out of use of any Confidential Information, and the use of such Confidential Information is at the recipients own risk.
Provision of any POS Software & Services under this EULA shall not create an obligation for TakuLabs to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop POS Software & Services either to you or to any other party.
THE POS SOFTWARE & SERVICES LICENSED HEREUNDER IS PROVIDED “AS IS” AND TAKULABS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE POS SOFTWARE & SERVICES, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE POS SOFTWARE & SERVICES, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TAKULABS DOES NOT WARRANT THAT THE POS SOFTWARE & SERVICES OR ITS THIRD PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE POS SOFTWARE & SERVICES, ITS THIRD PARTY COMPONENTS, OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF TAKULABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE POS SOFTWARE & SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OR THE MINIMUM ALLOWED DURATION UNDER SUCH APPLICABLE LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TAKULABS, ITS AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY.
SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAKULABS WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF TAKULABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You shall indemnify, defend and hold harmless TakuLabs and its directors, officers, staff, employees agents, and affiliates and their respective successors, heirs and assigns and affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “TakuLabs Parties”) from and against any liability, damage, loss or expense (including reasonable lawyers’ fees and expenses of litigation) incurred by or imposed upon the TakuLabs Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of a breach of your representations, warranties or obligations under this EULA; provided, however, that in any such case TakuLabs or its affiliates, as applicable, (a) provide you with prompt notice of any such claim; (b) permit you to assume and control the defence of such action upon your written notice to TakuLabs of your intention to indemnify; and (c) upon your written request, and at no expense to TakuLabs or its affiliates, provide to you all available information and assistance reasonably necessary for you to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the TakuLabs Parties, without TakuLabs’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable lawyers’ fees and costs awarded against or otherwise incurred by TakuLabs or its affiliates in connection with or arising from any such claim.
16. Export Restrictions
You acknowledge that the POS Software & Services is of Canadian origin. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulation, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
The parties agree to comply with all applicable Canadian laws and regulations pertaining to the export, re-export and import of products and documentation in effect from time to time. Without limiting the generality of the foregoing, you expressly warrant that you will not directly or indirectly export, re-export, or transship the POS Software & Services or Documentation in violation of any Canadian export or re-export laws or regulations. In addition, you expressly warrant that, with respect to the POS Software & Services and Documentation, you will not directly or indirectly export to any of the following destinations, for any of the following end-uses, or in any of the following forms: (A) To countries that are included in the Area Control List; that are subject to Canadian economic sanctions (including those implemented under the United Nations Act or the Special Economic Measures Act); that are excluded from the application of General Export Permit No. 12; and that are subject to sanctions under the Export and Import Permits Act; (B) For end-use that is directly or indirectly related to research, development or production of chemical, biological or nuclear weapons, or any missile programmes for such weapons; (C) Technical information relating to the design, development or implementation of the cryptographic components, modules, interfaces, or architecture of any POS Software & Services; and (D) Source code or pseudo-code, in any form, of any of the cryptographic components, modules, or interfaces of any POS Software & Services. You confirm that the POS Software & Services will not be used in any nuclear or missile proliferation activity, or in chemical or biological weapons activity.
17. Legal Fees
In the event that either party shall bring any action to enforce or protect any of its rights under this EULA, the prevailing party shall be entitled to recover, in addition to its damages, its reasonable legal fees and costs (including those of in-house counsel) incurred in connection therewith.
18. Governing Jurisdiction
This EULA is governed by the laws of Ontario, Canada, excepting its conflict or choice of law provisions. The parties hereby agree to irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario. The venue shall be Toronto, Ontario.
19. Miscellaneous Provisions
This EULA constitutes the entire agreement and understanding between TakuLabs and you and supersedes all prior and contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. This EULA may not be amended, except in writing or if digitally signed by an authorized representative of TakuLabs and you. This EULA shall be binding on the respective successors and assigns of the parties hereto. No delay or omission by either party in exercising any right under this EULA shall operate as a waiver of that or any other right. If any provision of this EULA shall be held invalid or unenforceable for any reason, such invalidity or unenforceability shall attach only to such provision and shall not affect or invalidate any other provision of this EULA. For the purposes of this EULA, “Affiliate” means an entity controlled by, controlling, or under ultimate common control of a party signing below. Furthermore, the person signing on behalf of the entity named below, has the authority to bind that entity and all of its Affiliates.
20. Force Majeure
TakuLabs will not be responsible or liable to you, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond TakuLabs’ reasonable control.
21. Language and Compliance
You confirm that this Agreement and all related documentation is and will be in the English language. The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. You are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the POS Software & Services and Documentation, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.