- Generally (1)
Loyl.Me (“We” and “Us” and “Our” with respect to our products and services) owns and operates the website Loyl.Me (“Website”) and the products described on the Website, including any of Our products or services you (“You” and “Yourself” and “Your” with respect to your rights and obligations) as one of our merchant customers (“Merchant”) subscribed to, whether directly with Us or through a third-party re-seller (Our products and services “Products”).Our Products are designed to assist You in administering Your customer loyalty/rewards programs and/or to market Your business to Your actual and prospective customers who have downloaded one of Our applications or have enrolled to receive email, text, or other communications (“Users”).
By separate agreement between Us and Users (“User Agreement,” which is available on the Website), Users use one of our applications or subscribe to receive emails or text messages from our merchant customers like You. This allows Our merchant customers like You to administer and manage their loyalty/reward programs with certain of these Users and to send such Users information about their business, products, promotions, and services (“Communications”).
These TERMS AND CONDITIONS – MERCHANT (“Terms and Conditions”) are part of the agreement (“Agreement”) between You and Us.
The Agreement consists of: the written or electronic agreement You executed with Us or with one of our resellers (in writing or electronically, such as by checking or clicking an acceptance box or button, or by completing an online subscription with Us or with one of Our resellers)(“Merchant Agreement”); these Terms and Conditions; the conditions and terms for the Product for which You have subscribed; and, any rules or policies set forth within Our Website (including within the description of the Product for which You have subscribed).
By using Our Products, You agree to the conditions and terms of the Agreement.
We may change parts of the Agreement from time-to-time. You should review these Terms and Conditions, the conditions and terms for the Product for which You have subscribed, and the Website from time-to-time. We also suggest You review the User Agreement at the start of Your Use and from time-to-time.
The Agreement starts on the earlier of (a) the first day of Your Use or (b) the effective date of the Merchant Agreement, and the term ends when terminated as set forth below (“Term”).Unless otherwise stated in a Merchant Agreement, the Term is for month-to-month service, with automatic extensions, unless terminated as set forth below.
The fees for Your Use and any associated installation, support, and/or overage charges (“Fees”) are set forth in the Merchant Agreement. Except for Fees for support and overage charges (which will be billed to You as, or shortly after, they are incurred), all Fees are payable in advance.Unless the Merchant Agreement states otherwise, the Fees may change at any time, for any reason, thirty (30) days after We give You notice of the change, or thirty (30) days after we post a new Fees schedule on the Website (see the “Pricing” tab on Our Website).
Fees for Use are based on full calendar months. We do not prorate or refund Fees for Use for partial calendar months of Use.
Except as may be expressly set forth in the Merchant Agreement, all Fees are non-refundable.
When You establish Your subscription with Us, You will be required to provide credit card or ACH payment information. Monthly during the Term, Our payment processing service will automatically charge Your credit card or account for the amounts due under the Agreement. By providing Your payment information, You are authorizing future charges to Your credit card or account for the amounts due under the Agreement.In certain cases, You may pay one of Our resellers for Your Use. In such cases, We will not charge Your credit card or account; however, if Our reseller fails to charge You or if You terminate Your agreement with such reseller, then We will charge You.
If We supply You any equipment or hardware for Your Use (“Equipment”), then You are responsible for maintaining that Equipment in good condition (normal wear and tear excused) for the Term and for returning it to Us (at Your cost and expense) immediately upon termination. In our discretion, upon Your request, We will provide You with additional Equipment at Your cost, plus Our handling cost.
Our license to You
We grant You a limited, non-exclusive, non-transferable, and revocable, license to access and use the Product for which You subscribed (and any Equipment) for the Term and for the Use, all subject to the terms and conditions of the Agreement.We may, from time-to-time, create new modules for, modify, release new versions of, or update the Product, any of which will be part of the Product for which You subscribed and of this license.
You may not grant any third-party any rights in the Product You Use or sublicense it or in any way transfer any of Your rights under this license.
Your license to Us
You grant Us an irrevocable, perpetual, royalty-free, transferrable, unlimited, and worldwide license to analyze, display, distribute, edit, modify, publish, reproduce, translate, and use commercially any and all information You submit to Us as well as any data associated with Your Use, in whatever form, through whatever medium, through the Products, or otherwise. You irrevocably waive any claim of attribution or moral rights to any such information. We may sublicense this license to multiple tiers of sublicensees.
- No other representations, covenants, or warranties
The Products are at all times provided “as-is” and “as-available.”You disclaim all warranties of any kind, and You acknowledge and agree that neither We nor any of Our affiliates, agents, contractors, directors, employees, investors, licensors, other Merchants, officers, owners, resellers, or suppliers makes any warranties of any kind, either express or implied, regarding the Products or Your Use, including, but not limited to any warranties:
- as to any results You may realize;
- of non-infringement;
- of quality or accuracy;
- of merchantability or fitness for a particular purpose;
- that the Products or Use are or will be compatible with Your equipment; or,
- that the Products or Use will be error-free, operate at a minimum level of up-time or function as described or intended.
To the maximum extent permitted by applicable law, You acknowledge and agree the Use is at Your sole risk.
- User Information
We are the sole owner of all interest, right, and title in and to any data or other information provided by or obtained by way of Users’ use of the Products (“User Information”).To the extent retained by Us, upon Your written request made not later than thirty (30) days after termination (and if all amounts due Us under the Agreement have been paid), We will provide You with a revocable, non-exclusive license to the User Information directly associated with Your Use, to the extent that User Information is at that time available to Us. To the extent available to Us when requested, We will make this User Information available to You one (1) time, only. This User Information will be provided “as-is” and “as-available” and only in the format in which we have maintained it, and the associated license will be revocable by Us at any time and for any reason and without warranty of any, kind, nature, or type, express or implied. You disclaim all warranties associated with this license, including but not limited to warranties:
- as to any results You may realize;
- of non-infringement;
- of quality or accuracy or completeness; or,
- of merchantability or fitness for a particular purpose.
You will use the User Information provided for Your own use, only, and will not in any way sublicense or transfer it, and You will use it in compliance with all applicable law and the restrictions below of the Agreement. You will not use the User Information for the purpose of Communications with Users.
Upon revocation, You will immediately delete all copies of all User Information provided and will remove it from all of Your systems.
- Intellectual property
All User Information and all of Our algorithms, content, copyrights, file formats, ideas, object code, patents, programming, servicemarks, software, source code, trademarks, and other intellectual property (as well as any enhancements, improvements, modifications, or refinements to them) in any way related to the Products (“Intellectual Property”) will at all times remain Our property. No part of the Agreement will be deemed to confer any rights to You in the Intellectual Property.Except as expressly set forth in the Agreement, all rights not expressly granted to You are reserved to Us.
Any recommendations or other communications from You to Us or any information You send Us (by whatever medium) and in any way related to the Products or Use is Our property.
Any third-party owner of any software or other intellectual property included within any of the Products own(s) all interest, rights, and title in and to that software and intellectual property (subject to their license to Us). No part of the Agreement will be deemed to confer any rights to You in this property.
You (for Yourself, only, and not for anyone else) may use the Products solely for Your own individual purposes.In part, You are responsible for:
- providing all equipment and cellular or internet access needed for the Use;
- all information You submit to Us or to a User, including ensuring such information is accurate and appropriate and sent in compliance with the Agreement;
- complying with all requirements or restrictions displayed within the Products (as may be updated from time-to-time);
- maintaining Your records of any User rewards; and,
- maintaining Your password.
You may not use the Products:
- in violation of the law;
- for a third-party’s commercial purposes;
- to promote a business, product, or service that is competitive with Us;
- in a way that constitutes unauthorized or unsolicited advertising or spam;
- to solicit or collect personal information from others, particularly minors;
- in a way that may harm minors;
- in a way that invades anyone’s privacy or other rights;
- in a way that discloses anyone’s confidential information or infringes the intellectual property rights of Us or others;
- in a way that is deceptive, false, fraudulent, inaccurate, inappropriate, libelous, misleading, or tortious;
- in a way that is abusive, defamatory, obscene, or threatening;
- in a way that degrades, intimidates, harasses, or victimizes an individual or group, including but not limited to on the basis of age, ethnicity, disability, gender, race, religion, or sexual orientation;
- in a way involving accounts or descriptions of sexual acts or sexual language;
- in a way that misidentifies You or impersonates anyone else;
- in a way that could be deemed illegal, offensive, or unethical; or,
- in breach of the Agreement.
Also, You may not:
- violate or attempt to violate the security of the Products;
- copy or reproduce all or any part of the Products or their elements, by any means (electronically or otherwise);
- decipher, decompile, disassemble, reconstruct, reverse engineer, translate, or otherwise attempt to derive or discover the trade secrets from the Products or the Intellectual Property, including, but not limited to, any of the programming, software, or source code comprising any part of the Products or the Intellectual Property;
- create compilations or derivative works of the Products or of the Intellectual Property;
- change, copy, display, distribute, duplicate, exploit, lease, rent, reproduce, republish, sell or re-sell, or transmit, in any medium, all or any part of the Products or the Intellectual Property;
- use the Products in connection with any computer programming intended to damage or interfere with or collect or intercept information from any system or person, including Our systems or a User’s systems;
- change, obscure, or remove any copyright or proprietary notices on any information You secure from Us or that We provide You, including what may be contained in parts of the Products;
- share Your password;
- export, re-export, or allow anyone else to export or re-export the Products;
- include in any Communications or upload to Our systems any employer identification numbers, passwords, security credentials, social security numbers, or any other sensitive information of any kind; or,
- Use a third-party unsubscribe process.
Further, You will limit Your Use to what is expressly authorized for Your subscription and to the number of “rooftops” for which You have subscribed. Additional Fees, plus interest, will be due for any breach of this restriction.
Also, We reserve the right to approve or modify any Communications or to impose requirements on any Communications, and You will honor any such requirements We communicate to You.
And, You will honor any User opt-out or unsubscribe election and will not send Communications (by any means) to any User who has opted-out or unsubscribed.
- Amendment — We may amend these Term and Conditions, at any time, with or without notice, and any such amendment will be effective immediately upon being incorporated in to these Terms and Conditions. Any amendment to the Merchant Agreement must be in writing and executed by an authorized representative of each party.
- Assignment — You may not assign the Agreement. We may assign all or part of the Agreement, at any time, with or without notice.
- Audit — From time to time during the Term and after termination, You will make available to Us and to Our accountants, consultants, and/or lawyers such of Your records (electronic and otherwise) and systems as reasonably necessary for Us to verify the amounts due Us under the Agreement and to verify Your compliance with the Agreement. These records may include, but are not limited to, Your accounting, customer, and store/location records (“Audit Information”). We will give You reasonable advance notice, but not less than five (5) business days’ notice, of Our request for an audit.
- Authority — You represent and warrant You have the authority to enter the Agreement. If You are an entity, then the individual entering the Agreement for that entity represents and warrants having the authority to enter the Agreement for that entity.
- Binding effect — The Agreement binds You and Us and each of Our authorized assigns and successors.
- Compliance — You are responsible for determining whether, and ensuring during the Term that, the Use is authorized by applicable federal, local, and state laws, ordinances, regulations, rules, and statutes (including, but not limited to, privacy laws and anti-spam laws, which include CAN-SPAM). You represent and warrant that You have determined the Use does and will comply with all such laws. You will at all times during the Term comply with all federal, local, and state laws, ordinances, regulations, rules, and statutes that relate to the Use. These laws may change during the Term, and it is Your sole responsibility to ensure compliance with any such changes.
- Confidentiality — For purposes of the Agreement, “Confidential Information” means Our confidential and proprietary information (whether You knew or should have known of its confidential nature, and irrespective of whether we marked it as confidential), including, but not limited to, Our: consultant relationships; data; designs; formulas; information; Intellectual Property; plans; pricing; procedures; processes; revenues; sales information; schedules; specifications; usage information; and, vendor relationships. Confidential Information also includes Your Audit Information.Neither party will copy, disclose, modify, reproduce, or otherwise use Confidential Information (except as may be expressly authorized by the Agreement) without the other party’s prior written consent, which consent may be conditioned, limited, or restricted in the discretion of the party who owns the Confidential Information.
The restrictions on disclosure in this section will not apply to Confidential Information: (i) for which there is documentary evidence that: (A) the other party knew it before it was disclosed; (B) the other party developed it without use of the Confidential Information; (C) it is publicly known; or, (D) it was obtained from a third-party, who disclosed it without breaching its confidentiality obligations; (ii) for which disclosure is required by law (provided that if a disclosure is required by law, the disclosing party will give the other party immediate written notice of such requirement, permitting the other party to seek a protective order or take such action it deems necessary, and provided further that in such case the disclosing party will only disclose the limited Confidential Information expressly required to be disclosed); or, (iii) in the case of a claim by Us against You for breach of the Agreement.
For the avoidance of doubt, at all times, all Confidential Information is the sole property of its owner, even if its disclosure is authorized under this section, and all other restrictions in the Agreement will continue to apply to such Confidential Information.
Notwithstanding any of the foregoing to the contrary, You authorize Us to disclose the fact of the Agreement to third-parties to whom We market our Products and to use Your logo (on Our website, in our emails, or in printed materials) for these purposes.
- Entire agreement — The Agreement is the entire agreement between You and Us and supersedes all contemporaneous or prior agreements, discussions, or understandings between You and Us, written and oral, as well as any promises or representations by a third-party.
- Indemnification — You will defend and indemnify Us and hold Us harmless, at Your sole cost and expense, from and against any claims, damages, expenses, and/or liabilities arising out of Your Use, from Your breach of any of Your obligations or representations in the Agreement, and from Your use of any User Information provided.
- Installation and support. Installation and support will be provided as set forth in the Merchant Agreement. You will be charged and agree to pay for all other installation and support.
- Interpretation — All numbering, titles, and similar items are provided for reference and convenience only and will not affect the meaning of the Agreement. The terms of the Agreement will be construed simply according to their fair meaning and not strictly for or against Us or You. To the extent of any conflict between any part of the Agreement, the Merchant Agreement will control, followed by these Terms and Conditions, followed by the conditions and terms for the Product for which You have subscribed, followed by any rules or policies set forth within Our Website (including within the description of the Product for which You have subscribed).
- Late payments — All amounts not paid when due will accrue interest at a rate of one percent (1%) per month until paid. Further, for any amount not paid when due, We may assess a late-payment penalty equal to ten percent (10%) of the amount due.
- Law and arbitration — Colorado law governs the Agreement. Any disputes related to the Agreement will be resolved by binding JAMS arbitration before a single arbitrator in Denver, Colorado. You further acknowledge and agree the arbitrator may award injunctive relief (in addition to damages) and that any such award(s) will be specifically enforceable. Further, if the arbitrator is unable to grant injunctive relief, then You consent to the exclusive jurisdiction and venue of the courts in Denver, Colorado, for the purpose of an action for injunctive relief. This section is a material requirement to Our allowing Your Use.
- Liability limitation — We will not be liable to You for any consequential, exemplary, incidental, indirect, punitive, or special damages, nor for any lost profits or damages for lost data or information (including any loyalty rewards or other benefits) in any way related to Your Use, whether the claim is based on contract, equity, regulation, rule, statute, or tort. FURTHER, IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ANY ONE OR ALL CLAIMS YOU MAY HAVE AGAINST US IN ANY WAY RELATED TO YOUR USE EXCEED AN AMOUNT EQUAL TO THE GREATER OF (I) THE TOTAL OF THE FEES YOU PAID US IN THE FIRST SIX (6) MONTHS OF THE AGREEMENT OR (II) $500 (US Currency). In addition to limiting Your damages, the limitations set forth in this section will apply to any claim for indemnification for third-party damages. These limitations are a material requirement to Our allowing Your Use.Further, We will have no liability for any damages incurred (to any equipment or systems or other physical property or to any intangible property) in connection with the installation, modification, removal, or updating of any Product.
Further, We will have no liability to You for any damages of any kind, nature, or type associated with Our failure to provide You with any User Information or for Your use of any User Information provided, and nor will We be obligated to indemnify You for any claims (whether by You or by a third party, including by an individual User) of any kind, nature, or type associated with Your use of the User Information.
- No third-party beneficiaries — Except as may be expressly set forth in the Agreement, the Agreement is solely for the benefit of You and Us, and nothing in it will be construed to create any duty to, any liability to, or any benefit for any person not a party to it.
- No breach — Your entering the Agreement and Your exercise of Your rights and performance of Your obligations under the Agreement will not conflict with, or result in a breach, default, or violation of, any agreement, arrangement, contract, decree, injunction, instrument, judgment, laws, license, or order to which You are bound or subject or require any consent under any such agreement, arrangement, contract, decree, injunction, instrument, judgment, laws, license, or order.
- Relationship — The relationship between You and Us under the Agreement is that of independent counterparties and neither You nor We will represent ourselves to be, the agent, joint venture partner, or representative of the other.
- Reward or benefit disputes — We may, in our discretion, unilaterally resolve any reward dispute (between a Merchant and a User), including by making adjustments to a User’s rewards.
- Severability — If any part of the Agreement is finally held to be illegal, invalid, or void, all other parts will remain in effect; provided, however, the Agreement will be reformed for the purpose of achieving conformity with the requirements of the applicable law and the intent as expressed in the Agreement.
- Survival — The parts of the Agreement that by their nature are intended to survive termination (e.g., audit, confidentiality, Fees (payment), indemnity, Intellectual Property, law and arbitration, liability limitation) will survive termination.
- Suspension — In Our sole discretion, We may limit, restrict, suspend, and/or terminate, with or without notice, and with or without reason, all or part of Your Use or of a User’s agreement and/or use. Without limitation, We may disable or limit Your Use or a User’s agreement and/or use if We believe You or the User may have violated, may be violating, or may intend to violate any part of the Agreement, including but not limited to the Use restrictions above (or as applicable as set forth in a User agreement). You will not be entitled to an adjustment or credit of Fees in the case of Our exercising Our rights under this section. For the avoidance of doubt, You will not be entitled to an adjustment or credit of Fees in connection with Our exercising our rights under this section.
- Taxes – You are responsible for and will pay when due all and any fees or taxes associated with Your Use.
- Termination — Unless otherwise stated in a Merchant Agreement, the Agreement terminates upon the earlier (i) our terminating Your Use or (ii) Your terminating the Agreement.We may terminate Your Agreement, in Our discretion, at any time, and for any reason, and with or without notice, including without limitation if You have not made any payment due Us.
You may terminate the Agreement, in Your discretion, at any time, and for any reason, and with or without notice. To terminate the Agreement You must log in to Your account and complete the termination process.
In addition to the foregoing, We may immediately terminate the Agreement upon Your insolvency or the initiation, by You (or by a third-party), of any action, case, or proceeding seeking bankruptcy, dissolution, or protection from creditors (or any similar proceedings) or seeking appointment of a custodian, receiver, or trustee for all or any part of Your property.
Immediately upon termination (i) You will discontinue Your Use and (ii) You will return to Us, at Your cost and expense, any Equipment You were supplied during the Term. We will invoice You Our cost, plus a handling charge, for any Equipment You do not return within thirty (30) days after termination.
- Waiver — Any failure by You or Us to enforce any terms of the Agreement or to require compliance with any of its terms at any time will in no way affect the validity of the Agreement, or any part of it, and will not be deemed a waiver of the right to later enforce such terms.