ENTERPRISE LICENCE AGREEMENT
TUCR LIMITED to MERCHANT
INSTORE LAYAWAY VERSION 1.0 IMPLEMENTATION: May 2016
PLEASE READ CAREFULLY BEFORE USING THE TUCR PLATFORM:
This ENTERPRISE USER LICENCE AGREEMENT (the “EULA” or the "Licence", this “Agreement”) is a legal agreement between you (the "Licensee", "you" or the “Merchant”) and [Tucr Limited, whose ordinary place of business is at Fumbally Exchange, Bricklane Greyfriars, Waterford City, Ireland], ("Licensor", “Tucr” or "we") for your licenced use of and access to www.Tucr.ie or www.tucr.ie (the “Site”) and your access to the services provided by Tucr and as described on the Site from time to time (the "Services") in accordance with the terms of this Agreement. (Hereinafter, unless separately referenced, the Site, the Services shall be known as the “Platform”.)
BY REGISTERING FOR, UPLOADING DATA TO AND/OR DOWNLOADING DATA FROM THE PLATFORM AND YOUR SUBSEQUENT CONTINUED USE OF THE PLATFORM, YOU CONSENT TO BE BOUND BY THIS LICENCE. BY CLICKING ON THE "ACCEPT" BUTTON ON REGISTRATION, AND AT ANY OTHER TIME ON LOGGING IN TO THE SITE AND THROUGH YOUR CONTINUED USE OF THE SERVICES, YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND WHERE RELEVANT YOUR EMPLOYEES AND AFFILIATES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT REGISTER FOR THE SITE OR USE ANY OF THE SERVICES. BY CLICKING THE “ACCEPT” BUTTON YOU CONFIRM THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS LICENCE AGREEMENT, THAT YOU ALSO CONSENT TO USE ELECTRONIC SIGNATURES AND ACKNOWLEDGE YOUR CLICK OF THE “ACCEPT” BUTTON AS AN ELECTRONIC SIGNATURE SUFFICIENT TO BIND YOU TO THE TERMS OF THIS LICENCE AGREEMENT.
GRANT AND SCOPE OF LICENCE
- General Overview: Tucr provides you, the Merchant with access to an electronic, cloud based layaway management platform which is designed to link merchants to consumers. This layaway programme records and facilitates the deposit of funds with Merchants over a particular time period and in accordance with an agreed payment plan. It then links with the Merchant to securely facilitate the layaway or reservation of a particular product or products. Upon receipt of payment, the funds are released to the Merchant Stripe account. Upon receipt of final payment, the Merchant releases the product(s) to the Customer.
- Licence: Tucr hereby grants to you a limited, non-exclusive, non-transferable, revocable, non-assignable, non sub-licensable licence and right to access the Platform though a generally available web browser or mobile device operating Platform (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Tucr or its users), in consideration of your strict and continued compliance with the following conditions:
- your agreement, as evidenced by your acceptance of this agreement and your continued use of the Platform and the Services, to abide by the terms of this Licence;
- following the completion of any free trial offered to you by Tucr, your continued payment of the appropriate license fee applicable from time to time and notified to you by Tucr;
- Use: Any use of Tucr, its Site, the software and/or Services or any part thereof in a manner contrary to the scope and purpose of the licence is strictly prohibited and a violation of this Agreement.
- Intellectual Property: Tucr reserves all Intellectual Property rights in the Platform and the Services and any such Intellectual Property shall and at all times be and for all purposes remain vested in Tucr or its licensors, including all copies made of the Platform in accordance with Section 11. Risk in the use of the Platform and the Services shall pass to you as soon as you register.
- Reciprocal Licence: In return for the above licence and in order to provide the Services, you hereby grant to Tucr an unlimited, exclusive, worldwide, perpetual, assignable, sub-licensable, fully paid up and royalty free right to use, copy, prepare derivative works from, improve, distribute, publish, remove, retain, add, process, analyse and commercialise, in any way now known or in the future discovered, any data or information you provide, directly or indirectly to Tucr, including, but not limited to, any meta data, user generated content, ideas, concepts or techniques submitted to Tucr, without the need for any further consent, notice and/or compensation to you or to any third parties, subject at all times to Tucr’s compliance with the Data Protection provisions of this Agreement set out at Section 14. Any information you submit to us is at your own risk of loss as noted in this Agreement.
ACCESS TO THE SERVICES
- Merchant Accounts: Tucr is offering the Platform and the Services solely for use by the person or entity in whose name an account is registered and not for the use or benefit of any third party. Tucr may change, suspend or discontinue any part of the Platform and or the Services at any time, including the availability of any feature, database, or content.
- Employee Accounts:
- The preceding Section 2.1 notwithstanding, your use of the Merchant Account shall include permission to create, link and administer a limited number of sub-accounts to the main Merchant Account, in order to facilitate the gathering and collating of Layaway Data (hereinafter “Employee Accounts”). These Employee Accounts are assigned by the Merchant acting as coordinator of their team and are linked to the main Merchant Account. This allows the Merchant to provide certain access permissions to certain employees, as well as monitoring performance with regard to layaway schemes.
- The number of live Employee Accounts in any one team is currently limited to a maximum of 30. This limitation may be increased or decreased at the discretion of Tucr. Any change regarding such limit will be notified to you in writing. Employee Accounts may be subject to an upload and download limitation which will be set out on the Site and is subject to change from time to time at the discretion of Tucr. In the event that your Employee capacity requires increased access, please contact Tucr at info@Tucr.ie.
- You as Merchant shall be responsible for ensuring Employee compliance with the terms of this this Agreement. Breach of the terms of this EULA is considered a material breach of this Agreement and shall be governed by the terms of Section 13 (termination).
- Account Limitation: Tucr may also impose limits on certain features of the Platform and the Services or restrict the Merchant or Employee access to parts or all of the Services without notice or liability. For as long as Tucr continues to offer the Platform and the Services, we shall provide and seek to update, improve and expand. Therefore, Tucr reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending you a notice via e-mail, and you consent to receipt of such notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Platform and the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. Any new features that augment or enhance the Platform and/or the Services currently available, including the release of new tools and resources, shall be subject to this Agreement (as updated). You can review the most current version of the EULA at any time at: www.Tucr.ie
- Account Availability: Tucr will use reasonable efforts to ensure that the Platform and the Services are available twenty-four hours a day, seven days a week. However, access to the Platform and Services shall be as they may exist and be available on any given day and Tucr have no other obligation, except as expressly stated in this Agreement. There will be occasions when the Platform and the Services will be unavailable or interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Tucr to minimize such disruption where it is within Tucr's reasonable control. YOU AGREE THAT TUCR WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SERVICE OR OTHER CONTENT. Tucr retains the right to create limits on use and storage with respect to the Platform and the Services in its sole discretion at any time with or without notice.
- Content and Data Back-up: Tucr further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by Tucr to be contrary to this Agreement. For the avoidance of doubt, Tucr has no obligation to store, maintain or provide you with a copy of any content or Customer Data that you or your Employees upload when using the Platform or the Services, unless such data has been properly input and saved. You should download the data at regular intervals from the Site in order to ensure that all data collected is correct and up to date. There is facility provided to Merchant Accounts alone to download the data in .csv file format. No other subsidiary account may access or download the content of the Customer Data without contravening the terms of this Agreement.
- Eligibility: To be eligible to use the Platform and the Services, you and your Employees must meet the following criteria and represent and warrant that you and your Employees:
- are not currently restricted from use of the Platform and the Services, or not otherwise prohibited from having a Tucr account;
- are not a competitor of Tucr or are not using the Platform and or Services for reasons that are in competition with Tucr;
- will only maintain one Tucr account at any given time (unless explicitly consented to by Tucr);
- will not violate any rights of Tucr, including intellectual property rights such as copyright or trademark rights;
- agree to provide at your cost all equipment, software, and internet access necessary to use the Platform and the Services;
- agree to comply with all data protection rules and regulations applicable in the State at the time of use; and
- understand and agree that use of the service may entail the application of certain incidental usage charges (“Incidental Charges”) during the installation and use of the Service. These Incidental Charges may, among others, be levied by your mobile network operator or your internet service provider. You are advised to consult your mobile data or internet data plan to identify the Incidental Charges which may be incurred prior to the installation and operation of these Services.
- Suitability: The Merchant certifies to Tucr that they are legally permitted to use the Platform and the Services, and take full responsibility for the selection and use of the Platform and the Services, and if applicable in the case where you are a separate legal entity such as but not limited to a limited company or partnership, your directors, partners and/or shareholders, take full responsibility for anyone delegated with and or authorised to act on behalf of the entity in respect of accessing, using and paying for access to the Platform and the Services, subject to prior verification at the discretion of Tucr. This Agreement is void where prohibited by law, and the right to use the Platform and Services are revoked in such jurisdictions. Tucr makes no claim that the Service may be lawfully used or that Customer Data may be uploaded or downloaded in any jurisdiction save the jurisdiction specified by this Agreement. Access to Customer Data or content made available via the Platform may not be legal by certain persons or in certain countries. If you use the Service from outside Ireland, you do so at your own risk and you are responsible for compliance with the laws of that jurisdiction. Furthermore, if you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with a detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
- Registration Process:
- When registering for the use of the Platform and the Services, you must provide your own full legal name, a valid e-mail address, a geographical address and any other information requested in order to complete the registration process to create a Merchant Account (“Merchant Account”). This permits us to verify you as the Merchant and the permitted user of the Platform and the Services, as well as identifying the Employee Accounts associated with your Merchant Account, in a secure manner.
- If you choose to create a Merchant Account, you agree to provide only accurate and complete registration information and you will keep that information up-to-date if it changes.
- When you register, you will be asked to generate unique log-in credentials (a “User Name” and “Password”). Access to the secure aspects of the Site, the Customer Data and the Services is not authorized by any other person or entity using your User Name and Password and you are responsible for preventing such unauthorized use.
- Equally, you will have responsibility for assigning the Employee Accounts to the particular individuals with your team and with administering their access through the creation of separate User Names and Passwords. You will be able to administer these accounts through the dashboard, an online monitoring tool for facilitating efficient organisation of the Customer Data, as well as your Employees.
- Employees will have limited access to input and view information created by the team relating to Customer Data and/or your Merchant Account. Each Employee will subsequently be able to change their password as they see fit.
- Access Denial: Individuals whose access to the Platform or use the Services has previously been terminated by Tucr may not register for another account, nor may you designate any of those individuals to use your account on your behalf or create an Employee Account for such an individual. Tucr expressly reserves the right not to grant access to anyone they may choose, to the Services, the Platform or to create an account for any reason.
- Authentication: The Site and Application rely on User Names and Passwords to know whether account holder or users accessing the Platform and utilising the Services are authorized to do so. If someone accesses the Platform and or the Services using a User Name and or Password that you have created or that Tucr issues to you in the event of a Password reset request to your designated email address, Tucr will rely on that User Name and Password and will assume that access has been made by you. You are recommended to change your password regularly to prevent unauthorised use. You are solely responsible for any and all access to the Platform or use of the Services by persons using your User Name and Password. Please notify us immediately if you become aware that your or any associated account User Name and/or Password are being used without authorization.
- Access Indemnity: You indemnify us and hold us harmless for all damages and Losses related to:
- your failure to comply with the provisions of this Section 3, including, without limitation, your failure to secure your Merchant Account from third party access; and
- breach of Data Protection Laws resulting from 3.4.1.
AGE AND RESPONSIBILITY
- Age: Any individual making use of the Platform or the Services, whether on their own or on behalf of the Merchant in the case of an Employee, must be over 18 years of age to register or utilise the Platform and Services. Anyone utilising the Platform or the Services under the age of 18 may register and utilise the Platform or the Services in conjunction with and under the supervision of a parent or guardian.
- Responsibility: By using and registering for the Platform and the Services you understand that you are financially responsible for the applicable cost of using the services as detailed in this agreement. You agree to notify us immediately of any unauthorised use of your log-on information or any other breach of security. Furthermore, all individuals using the Platform and Services confirm they are over the age of 16, as the Service is not intended for persons under 16. Use of the Services by an individual under 16 years of age is prohibited and we ask that you please not use the Services.
- MERCHANT UNDERTAKINGS
- Undertaking: Except as expressly set out in this Licence or as permitted by any local law, you undertake not to:
- input personal or sensitive data relating to a data subject without explaining the purpose of the collection and processing of such data to the data subject;
- use the Platform for any unlawful or illegal purpose, act dishonestly, fraudulently or unprofessionally by engaging in unprofessional behaviour by posting inappropriate, inaccurate, or objectionable content to or through Tucr;
- Publish inaccurate information in the designated fields on the profile form (e.g., do not include a link or an email address in the name field);
- make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Site or the content on the Site;
- make any translation, adaptation, arrangement or any other alteration of the permanent aspects of the Site and or any software;
- make any form of distribution to the public of the content of the Site or the software, in whole or in part, or of copies thereof;
- remove or alter any copyright or other proprietary notice from the Site or the Services;
- disseminate, sell, give away, hire, lease, offer or expose for sale or distribute the content of the Site, the software, or another product wholly or partially derived from any of the foregoing;
- Create a user profile for anyone other than a natural person;
- Harass, abuse or harm another person, including sending unwelcomed communications to others using the Services;
- Use or attempt to use another's account without authorization from Tucr or the Merchant or another Employee Account, or create a false identity on or through the Services;
- Upload, post, email, transmit or otherwise make available or initiate any content that:
- Falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym.
- Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
- Adds to a content field content that is not intended for such field (i.e. submitting a telephone number in the “Name” or any other field, or including telephone numbers, email addresses, street addresses or any personally identifiable information for which there is not a field provided by Tucr);
- Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships.
- Infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;
- Includes any unsolicited or unauthorised communication, advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. This prohibition includes but is not limited to (a) using Tucr to send messages to people who don’t know you or who are unlikely to recognize you as a known contact; (b) sending messages to distribution lists, newsgroup aliases, or group aliases; and/or
- infringes upon the rights of data subjects protected by the Data Protection Acts.
- Participate, directly or indirectly, in the setting up or development of a network that seeks to implement practices that are similar to sales by network or the recruitment of independent home salespeople for the purposes of creating a pyramid scheme or other similar practices.
- Imply or state, directly or indirectly, that you are affiliated with or endorsed by Tucr unless you have entered into a written agreement with Tucr;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
- Use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Site;
- Infringe or use the Tucr brand, logos and/or trademarks, including, without limitation, using the word “Tucr” in any business name, email, or URL or including Tucr’s trademarks and logos except as provided in any brand guidelines created by Tucr or as expressly permitted by Tucr;
- Use bots or other automated methods to access Tucr, add or download contacts, send or redirect messages, or perform other activities through the Application, unless explicitly permitted by Tucr;
- Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of Tucr’s Site;
- Attempt to or actually access Tucr by any means other than through the interfaces provided by Tucr such as its mobile application or by navigating to www.Tucr.ie using a web browser. This prohibition includes accessing or attempting to access Tucr using any third-party service, including software-as-a-service platforms that aggregate access to multiple services, including Tucr and proxy services;
- Deep-link to the Site for any purpose, (i.e. including a link to Tucr other than the home page) unless expressly authorized in writing by Tucr or for the purpose of promotion as set forth in any brand guidelines;
- Attempt to or actually override any security component included in or underlying Tucr;
- Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on Tucr’s infrastructure, including, but not limited to, sending unsolicited communications to other users or Tucr personnel, attempting to gain unauthorized access to Tucr, or transmitting or activating computer viruses through or on Tucr; and/or
- Fail to bring the Merchant terms of service to the attention of the Customer at the point of sale.
- Compliance Indemnity: You hereby agree to indemnify and hold the Licensor and its licensors harmless from and against any liabilities, damages, judgments, losses, costs and expenses (including reasonable legal fees) arising out of your registration for the Site, any downloading, installation and use of the software, or use of the Services in a manner inconsistent with this Licence.
- TUCR UNDERTAKINGS
- Tucr Indemnity: We shall indemnify you against any claim that your use of or access to the Platform or Services infringes the copyright of any third party provided:
- we are immediately notified of any such claim;
- you do not make any admissions of liability;
- we are given immediate and complete control of such claim, including the right to conduct the defence of any claim and to make any settlements as appropriate; and
- the claim does not arise on foot of any of the circumstances set out in condition 5.1 above.
- Remedies: We shall have the right at our discretion, to replace, modify or change the software incorporated in the Platform and/or Services to make the software non-infringing or refund to you the price paid to Tucr in the first 12 months of this Agreement. The maximum aggregate liability of Tucr shall be equal to that which is set out in section 10 of this Agreement. This states the entire liability of Tucr to you in respect of the infringement of the intellectual property rights of any third parties.
- Disclosure of User Information:
- You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide to us, if required to do so by law or we, in good faith believe that such access, preservation or disclosure is reasonably necessary in our opinion to:
- comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures;
- enforce this Agreement;
- respond to claims of a violation of the rights of third parties, whether or not the third party is a user, individual, or government agency;
- respond to customer service inquiries; or
- protect the rights, property, or personal safety of Tucr, our users or the public.
- THIRD PARTY SITES
- Responsibility: Tucr is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites or applications. Tucr also does not screen, audit, or endorse applications. Accordingly, if you decide to access Third Party Sites or use applications, you do so at your own risk and agree that your use of any application is on an “as-is” basis without any warranty as to the application, and that this Agreement does not apply to your use of any Third Party Site or application.
- INTERACTIONS WITH THE TEAM
- Set Up: You accept responsibility for configuring the Employees or members of your team on the Platform. You, as the Merchant Account holder create the Employee Accounts, identify the individuals to act as your Employees, register them for log in and ensure that they are adequately briefed as to the user requirements for the Tucr Platform, as well as the consumer law and Data Protection Law requirements applicable to the Customer Data collected and collated.
- As a Merchant you should be aware that Employees are capable of inputting the information at a number of different sources;
- their smart phones, through an application;
- their smart phones, tablets or personal computer through their online web-browser.
- As a Merchant, you should also note that each Employee on the team will have access to all the aggregate inputted Customer Data live as inputted by each of your Employees. Personal or Sensitive information shall not be available for them to view.
- As Merchant, the Platform will provide you with the facility to contact each individual Employee and the team as a group and to promote certain sales issues for dissemination.
- Confidentiality: It shall be the prerogative of the Merchant to ensure confidentiality procedures and non-disclosure arrangements are in place between the Merchant and the members of the team. You hereby indemnify and hold Tucr harmless of any responsibility in relation to the actions of any Employee in violation or breach of Data Protection Law and the breach of their confidential relationship with the Merchant.
- WARRANTY & DISCLAIMER
- DO NOT RELY ON TUCR, ANY INFORMATION THEREIN, OR ITS CONTINUATION. WE PROVIDE THE PLATFORM AND THE SERVICES AND ALL INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TUCR DOES NOT CONTROL OR VET DATA STORED OR USER GENERATED CONTENT FOR ACCURACY. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS SAVE AS SET OUT IN THIS AGREEMENT.
- TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY TUCR OR ANYTHING RELATED TO TUCR, YOU MAY CLOSE YOUR TUCR ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 13 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
- TUCR IS NOT RESPONSIBLE AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, FORUM POSTINGS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH TUCR TO ANYONE. THE TRANSMISSION OF ANY SUCH MESSAGES OR COMMUNICATION SHALL BE ENTIRELY THE RESPONSIBILITY OF THE MOBILE NETWORK OPERATOR OR BROADBAND INTERNET PROVIDER. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE SITE, THE APPLICATION OR ANY USER MANUALS, MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.
- TUCR DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS; THEREFORE, TUCR DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
- TUCR DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN OPERATION. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR PLATFORM OR NETWORK FAILURES. TUCR DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONALITY. FURTHERMORE, TUCR DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE PLATFORM DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
- LIMITATION OF LIABILITY.
- Disclaimer: Neither Tucr nor any of our subsidiaries, affiliated companies, employees, shareholders, or directors (“Affiliates”) shall be cumulatively liable for (a) any damages in excess of the fee that you paid for a Tucr Service in the preceding 12 month period, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Services or any of the content or other materials on, accessed through or downloaded from www.Tucr.io and www.Tucr.ie. This limitation of liability is part of the basis of the Agreement between the Parties and without it the terms and prices charged would be different.
This limitation of liability shall:
- Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose;
- Not apply to any damage that Tucr may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement; and
- Not apply if you have entered into a separate agreement to purchase Services from Tucr with a separate Limitation of Liability provision that supersedes this section in relation to those specific Services.
- Breach of Warranty: For the avoidance of doubt, Tucr shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following circumstances:
- any use of the Services by you and your Employees other than in accordance with the terms of this Agreement or use of the Services for a purpose for which they were not designed;
- any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Platform;
- any reverse assembly, reverse compilation, reverse engineering or adaptation of the whole or part of the Platform;
- alteration, modification, adjustment, translation, adaptation or enhancement made by you to the Platform or any combination, connection, operation or use of the Platform with any other equipment, software or documentation;
- any dissemination, sale, hire, lease offer or exposure for sale or distribution of the Platform;
- any item of third party hardware or software, even if forming part of the Software or if the Licensor has recommended such third party hardware or software;
- any breach by you of your obligations under this Agreement or of the Licensor’s intellectual property rights; or
- any act, omission, negligence, fraud or default of or by you.
11. INTELLECTUAL PROPERTY RIGHTS
: You acknowledge that all intellectual property rights, title and interest in the Platform and the Services contained therein, throughout the world belong to Tucr, that rights in the these are licensed (not sold) to you, and that you have no rights in, or to, the Platform and the Services other than the right to use them in accordance with the terms of this Licence.
: In the event that you provide us with ideas, suggestions, documents, improvements, comments, proposals or feedback in relation to the operation of the Platform and or the Services (“Feedback”) howsoever facilitated by the Platform; any such communication with Tucr whether verbally, via postings on blogs, forums, email and the like (“Communication”), you acknowledge and agree that such Feedback and or Communication (together “Contributions”):
11.2.1. do not contain confidential or proprietary information;
11.2.2. does not create any express or implied obligation of confidentiality in respect of Tucr;
11.2.3. entitle Tucr to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide;
11.2.4. do not preclude Tucr from having something similar to the Contributions already under consideration or in development;
11.2.5. that you irrevocably waive and assign all right, title and interest in and to the Contributions to Tucr. You further agree to provide Tucr with such assistance as may be required in documenting, perfecting and maintaining Tucr’s rights in and to the Contributions.
11.2.6. do not entitle you to any compensation, royalty or reimbursement of any kind from Tucr under any circumstances.
12. INTEGRITY OF DATA
12.1 Not Bespoke
: You acknowledge that the Platform and the Software have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Platform and the Services as described on the Site, meet your requirements.
12.2 Minor Errors
: You acknowledge that the Platform and the Services may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.
: You agree that you are the best judge of the value and importance of the data held on your account and that you will be solely responsible for taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.
12.4 Implied Warranty:
Except as expressly provided herein and to the extent permitted under applicable law, all conditions and warranties (express or implied, statutory or otherwise) are excluded by the Licensor including without limitation any warranties implied by the Sale of Goods Act, 1893. as amended by the Sale of Goods and Supply of Services Act 1980. Without prejudice to the generality of the foregoing, the Licensor does not warrant that the Platform will achieve any intended result or that the operation by you of the Platform will be uninterrupted or error free.
This Licence is effective either until deactivated by you in accordance with the full process provided for on the Site or until terminated by Tucr.
13.2 Immediate Termination
: Tucr may terminate this Licence immediately if:
13.2.1 you or any of your Employees, commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of notice requiring you to do so;
13.2.2 a petition for a bankruptcy order to be made against you has been presented to the court;
13.2.3 you (where the Licensee is a company) become insolvent or unable to pay your debts (within the meaning of section 214 of the Companies Act 1963-2012 as amended), enter into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), pass a resolution for winding-up, have a receiver or examiner, trustee, liquidator or similar officer appointed over the whole or any part of your assets, make any composition or arrangement with your creditors or take or suffer any similar action in consequence of your debt, or become unable to pay your debts as they fall due.
13.2.5 for just cause at the sole discretion of Tucr to include, but not limited to the abuse of any fair usage policy or for the breach of any matter outlined under Section 5.1 above; or
13.2.6 for breach of the duties outlined at Section 5 to this Agreement.
13.3 Merchant Termination:
You may terminate at any time, subject to adherence to the account deactivation process outlined on the Site and any applicable terms in the Terms and Conditions applicable at the time.
13.4 Upon termination for any reason:
13.4.1 all rights granted to you under this Licence shall cease;
13.4.2 you must cease all activities authorised by this Licence;
13.4.3 you must immediately pay to the Licensor any sums due to the Licensor under this Licence if applicable; and
13.4.4 All data stored and retained in the Platform will be deleted within a reasonable period.
14. DATA PROTECTION
14.1 Definitions: For the purposes of this Agreement the following definitions relating to Data Protection shall apply:
“Data Protection Acts
” means the Data Protection Acts 1988 and 2003 (as amended from time to time)
“Data Protection Law
” means all legislation and regulations relating to the protection of personal data including (without limitation) the Data Protection Acts and all other industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by the Data Protection Commissioner relating to the processing of personal data or privacy or any amendments and re-enactments thereof;
” means any claim, suit, proceeding, judgment, liability, cost, expense, fee, penalty or fine;
“Relevant Personal Data
” means personal data (as defined in the Data Protection Acts) or Customer Data delivered to Tucr by the Merchant or members of the Merchant’s team through the Platform for the purposes of this Agreement;
14.2 “Data Controller
”: the Parties acknowledge that, in relation to Relevant Personal Data and for the purposes of the Data Protection Acts, the Merchant is the data controller and Tucr is the data processor.
14.3 Data Processor’s Obligations:
Tucr agrees with the Merchant that:
14.3.1 it shall only process Relevant Personal Data in accordance with the instructions of the Merchant within the context of the Services and only Customer Data submitted through the Platform;
14.3.2 it shall not sell, transfer or allow access to any Relevant Personal Data to any other party other than those of its officers, employees, agents and contractors to whom and to the extent to which such disclosure is necessary for the operation of the Platform and the provision of the Services, to specifically include payment processors;
14.3.3 it shall not copy any Relevant Personal Data or maintain any Relevant Personal Data on any other Platforms, applications or other medium other than required for the purposes of this Agreement;
14.3.4 it shall not transfer any Relevant Personal Data outside the European Economic Area;
14.3.5 it shall take reasonable steps to ensure that the Relevant Personal Data is accurately recorded and kept up to date;
14.3.6 it shall maintain procedures for checking, correction and updating the Relevant Personal Data and notifying the Merchant of any corrections.
: Tucr shall take all reasonable measures with a view to preventing unauthorised access to, or unauthorised alteration, disclosure, destruction of, any Relevant Personal Data in the custody of Tucr and Tucr shall take all reasonable steps to ensure that its personnel are aware of and comply with those measures.
: As between the Merchant and Tucr all Relevant Personal Data shall be the property of the Merchant. Any aggregate, relevant non-personal data generated through the Customer Data directly or through the processing of such Customer Data shall be the property of Tucr in accordance with the terms of Section 1.5 (reciprocal licence).
14.6 Data Subject Requests
: Each Party shall promptly notify the other of each request from a data subject for access to Relevant Personal Data relating to him. Tucr shall not accede to any such requests except on the instructions of the Merchant.
: Tucr shall indemnify the Merchant on demand from time to time from and against all direct Losses suffered or incurred by the Merchant arising out of or in connection with breach by Tucr of its obligations under this Section 14.
14.8 Merchant Warranty
: The Merchant represents and warrants to Tucr, on a continuing basis for the duration of this Agreement:
14.8.1 that all consents required for the processing of all Relevant Personal Data by Tucr in the manner contemplated by this Agreement have been obtained and are in full force and effect;
14.8.2 that the Merchant and its Employees have complied with all of their obligations (however arising) in respect of all Relevant Personal Data;
14.8.3 that the processing by Tucr of Relevant Personal Data in the manner contemplated by this Agreement will not infringe the rights of any person under the Data Protection Acts or any similar laws in any jurisdiction other than Ireland.
14.9 Merchant Indemnity
: The Merchant shall indemnify Tucr on demand from time to time from and against all Losses suffered or incurred by Tucr:
14.9.1 arising out of or in connection with the processing of any personal data on the instructions of the Merchant; and/or
14.9.2 which would not have been suffered or incurred by it had none of the foregoing representations and warranties in Section 14.8 been breached.
15.1 Fees & Payments Policy
: Merchants will be charged for using some of Tucr’s services. Retailers may be required to pay the following types of fees:
15.1.1 Transaction Fees:
When you receive a layaway payment through tucr, you will be charged a transaction fee of 1.4% of the total item price plus 30cents per transaction. This percentage does not apply to the shipping cost or tax. Transaction fees will appear on your tucr receipt.
: At this time, Tucr cannot refund, reimburse, cover, or otherwise be responsible for any fees not paid to Tucr. This includes any customs taxes or VAT as well as any return shipping costs you may incur in the refund process. You are responsible for collecting and paying any taxes associated with using and managing layaways through Tucr’s services.
: The Customer may at any time cancel their layaway contract with you. You will be required to meet the terms outlined in your layaway contract. That may mean a full refund of the amount provided to you or Tucr subject to any transaction fees payable to Tucr.
15.1.4 European Union Right of Withdrawal
: The right of withdrawal does not apply to layaway contracts that have been started in-store. Therefore a 14-day “cooling off” period does not apply to any layaway contracts initiated in-store.
: Any prices, quotations and descriptions made or referred to on the Site are provisional, do not constitute an offer and may be withdrawn or revised at any time prior to our express acceptance of your order. Tucr reserves the right to change prices stated on the Site at any time. Pricing in respect of the Services is available from info@Tucr.ie or alternatively from our helpline number detailed on the Site.
Unless otherwise agreed or Tucr otherwise decides, all monies due to Tucr from the Merchant become payable as soon as an account or demand therefore is issued to the Merchant. Unless otherwise agreed or Tucr otherwise decides, payment shall be due within fourteen days of the date of the issue of an account invoice, unless otherwise stipulated within the Customer’s direct debit agreement terms.
16.1 Service messages
: For the purposes of service messages and notices about the Services to you, Tucr may place a banner notice across the Site or the Application to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Tucr to an email address associated with your account, even if we have other contact information.
16.2: General Communication
: You also agree that Tucr may communicate with you through your account or through other means including email, mobile and telephone about your account or services associated with Tucr. Please review your settings to control what kind of messages you receive from us. You acknowledge and agree that we shall have no liability associated with or arising from your failure to do so, to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services.
16.3 Contacting Tucr:
In addition Tucr may be contacted via our mail courier at: Fumbally Exchange, Bricklane Greyfriars, Waterford City, Ireland
16. AMENDMENTS TO THE LICENCE
Tucr reserves the right, at our sole discretion, to amend, add or delete any of the terms and conditions of this Licence. Tucr will post notifications of any such changes to this Licence on the Site or in the Application, will provide a link to the revised version of this Licence, and may provide such other notice as the Licensor may elect in its sole discretion. If any future changes to this Licence are unacceptable to you or cause you to no longer be in compliance with this Licence, you may terminate this Licence in accordance with the terms herein.
16.2 Evidence of Acceptance
: Your installation, download and/or use of any updated or modified Software (if any) and/or your continued use of the Platform or the Services following notice of changes to this Licence as described above means you accept any and all such changes. Tucr may change, modify, suspend, or discontinue any aspect of the Platform and/or the Services at any time.
: Tucr may also impose limits on certain features without notice or liability. You disclaim any right, title or interest, monetary or otherwise, in any feature or content contained in the Platform and/or the Services.
17.1 Strict Performance
: If Tucr fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if Tucr fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
17.2 Subsequent Default
: A waiver by Tucr of any default shall not constitute a waiver of any subsequent default.
17.3 Effective Waiver
: No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
18. CONFIDENTIAL INFORMATION
18.1 The Platform and any associated documentation (the "Documentation") contain confidential information of Tucr and all copyright, trade-marks and all other intellectual property rights in and to the Software and Documentation are and shall remain the sole and exclusive property of Tucr. Nothing in this Agreement shall confer any rights in any trade name, business name or trade mark of Tucr on you. The provisions of this Clause 18 shall continue to operate after the termination of this Agreement.
19.1 Severance of Terms: If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
20. ENTIRE AGREEMENT
20.1 Entire Agreement: This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the license hereunder and supersedes any prior agreement, representation, understanding or arrangement between us, whether oral or in writing. Both Parties hereunder acknowledge that, in entering into this Licence, neither Party has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence. Neither Party shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in this Licence.
21 LAW AND JURISDICTION
21.1 Jurisdiction: This Licence is governed by Irish law. Any dispute arising from, or related to, any term of this Licence shall be subject to the non-exclusive jurisdiction of the Irish courts.
21.2 Language: Any dispute arising from, or related to, any term of this Licence arising between the Parties, shall be resolved or determined based on the English language version alone. These terms were originally written in English. In the event that these terms are translated into any other language, the translation shall be for review purposes only and have no legal effect.
22.1 Relationship: Nothing in this Agreement shall create, evidence or imply any agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party represent that it has any authority to make commitments on behalf of the other party.