- Loyl.Me Services:
Description of Service: The Loyl.me Service is an internet-based service that enables a Merchant to design and send commercial marketing and loyalty offers (“Messages”) to certain of Merchant’s Customers. Loyl.me provides Merchant with neutral tools with which to design and develop such Messages, and as well provides for their delivery to Customers in a variety of ways – for example, through short message services (“SMS”), email, Facebook and Twitter. The Loyl.me Services may include, without limitation: prizes and products; measurements of Customer visits, purchased amounts, and frequency of use; points; flat discounts; stored-value cards; and punchcards.
General Restrictions on Use: Merchant will at all times design and send Messages only as prescribed by Loyl.me. Merchant may not use the Loyl.me Service to promote any products or services that it does not offer and sell directly to Customers. Merchant may not change the privacy policies established by Loyl.me for Customers.
Merchant must comply with a host of federal and state laws in using the Loyl.me Service, and Merchant accepts and assumes sole and exclusive responsibility to comply with these laws. In this regard, Loyl.me strongly encourages Merchant to refer to the following non-exclusive list of laws and resources to help combat possible legal violations relating to its use of the Loyl.me Service:
- The Telephone Consumer Protection Act
- Federal Trade Commission Act, Section 5
- CAN-SPAM Act
- Mobile Marketing Association
- CTIA-The Wireless Association
Merchant should carefully review the laws listed above, and is responsible for compliance with such laws. Similarly, Loyl.me encourages Merchant to review the laws of the state or states in which it operates or to which it sends Messages via the Loyl.me Service, and is responsible for compliance with such laws.
Loyl.me has also adopted its own restrictions applicable to the use of the Loyl.me Services. These restrictions in many cases track the requirements of applicable law, and are discussed below. Merchant’s failure to follow these restrictions, for example by creating and sending Messages in a manner contrary to these restrictions, will not be tolerated by Loyl.me, and is done at Merchant’s own risk. Merchant is also advised that its adherence to these restrictions will not assure that Merchant will be compliant with all federal and state laws applicable to it.
Communicating Messages: Merchant will comply with the following requirements concerning the delivery of Messages to Customers:
- SMS: The Loyl.me Service may not be used to send Messages to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the receiving party is charged for the Message, unless the recipient provides his or her express prior written consent. Loyl.me has a zero tolerance policy with respect to unsolicited SMS commercial messages, which are strictly prohibited under the Telephone Consumer Protection Act, as referenced above.
Before using the Loyl.me Service to send a Message to Customers using SMS, each Customer will be required to provide his or her express prior written consent by following an opt-in process required by Loyl.me, which opt-in process may be done electronically on this webiste or any app powered by Loyl.me, by email, or in writing. Customers will also have the ability to opt-out of receiving Messages at any time.
Messages sent using SMS will contain customary industry disclosures, such as “Msg & Data Rates May Apply”; instructions for opting out (e.g., “Reply Stop to stop”); and instructions for obtaining help (e.g., “Text Help for help”). Appropriate disclosure will be included as to expected frequency of SMS messaging, as well as a link to applicable terms and conditions.
- Email: When using the Loyl.me Service to send an email Message to Customers, Merchant must comply with the requirements of the CAN-SPAM Act, as referenced above. Every email Message sent by Merchant using the Loyl.me Service will be automatically appended with an opt-out link that will allow Customer to remove himself or herself from Merchant’s contact list, and a notice of Customer’s right to opt-out. Such Messages will also include a return email address, identification that the Message is an advertisement, and Merchant’s physical address. Messages must not include false or misleading transmission information or deceptive subject headings, including but not limited to third party domain names or email addresses. Messages also must not be sent to any Customer that has opted-out of receiving Messages from Merchant. Loyl.me has a zero tolerance policy for emails that are not sent in compliance with the CAN-SPAM Act.
- Facebook: Messages may also be sent to Customers that have “liked” Merchant’s business page on Facebook. If the Message is to be sent via “news feed” or similar method, then it must comply with the requirements for email Messages set forth above. If the Message is to be sent via SMS, then Customer will be required to complete the opt-in process described above which will include information such as his or her cellular phone number, and providing for Customer’s express written consent.
- Twitter: Merchant may have a separate Twitter account that it chooses to link to the Loyl.me Service for the purpose of publishing Messages to its Twitter feed. To follow Merchant’s Twitter feed and receive Messages in this manner, Customers will first need to opt-in to follow Merchant’s Twitter feed, which will occur in accordance with the requirements applicable to SMS messaging set forth above.
Loyl.me reserves the right to discontinue one or more of the foregoing communication methods, and to change or supplement any applicable restrictions, at any time and for any or no reason.
Developing Message Content: Merchant acknowledges and agrees that Loyl.me is not a publisher of the content contained in Merchant’s Messages. Merchant understands that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content“), whether publicly posted or privately transmitted by Merchant, is the sole responsibility of Merchant. This means that Merchant, and not Loyl.me, is entirely responsible for all Content that Merchant uploads, posts, transmits or otherwise makes available via the Loyl.me Service. Loyl.me does not control the Content posted via the Loyl.me Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Loyl.me be liable (including, without limitation, to any Merchants or Customers) for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Loyl.me Service.
The following is a non-exclusive list of Content (and related products and services) that Loyl.me prohibits (“Prohibited Content”):
- Pornography or pornographic products, including magazines, video and software.
- Escort services.
- Illegal goods or contraband.
- Pirated computer programs.
- Instructions on how to assemble or otherwise make bombs, grenades or other weapons.
- Material that exploits children less than 18 years of age.
- Products or services frequently associated with unsolicited commercial email, a.k.a. SPAM, such as online and direct pharmaceutical sales, health and sexual well-being products, work at home businesses, credit or finance management, credit repair and debt relief offerings, stock and trading tips, get rich quick, and mortgage finance offers, and betting/gambling services, including poker, casino games, racing and sporting events.
- Sweepstakes, contests and promotions.
- Alcohol (other than beer and wine, which is permitted), drugs, tobacco or other controlled substances.
- Material that is offensive or objectionable, including blatant expressions of bigotry, prejudice, racism, hatred, and profanity, or obscene, lewd, lascivious, filthy, or violent.
- Disclosure of personally identifiable or private information of another person, or information reasonably linkable to another person, without such other person’s consent (or a parents’ consent in the case of a minor).
- Products or services that are unlawful in the location at which the Content is posted or received.
- Software containing viruses, worms, harmful code and/or Trojan horses.
- Pyramid schemes or multi-level channel and/or network marketing (MLM) businesses.
- Material that is libelous, defamatory, scandalous, threatening, or harassing.
- Material that advocates, promotes or otherwise encourages violence or which provides instruction, information or assistance in causing or carrying out violence.
- Material that infringes upon the intellectual property rights of another.
- Advertising that is illegal or actionable under, or not in compliance with, any federal, state or international law, including prohibitions against unfair and deceptive, or false or misleading, advertisements or business practices.
Restrictions on Use: Each User agrees not to use any User Services for any reason related to any Prohibited Content or otherwise prohibited by law.
User Messages: User agrees that Loyl.me may send messages to the User regarding the User Services either via the User Profile or by email to an email address expressly provided by the User to Loyl.me. Every email sent by Loyl.me Service will be automatically appended with an opt-out link that will allow User to remove such User’s email address from Loyl.me’s contact list, and a notice of User’s right to opt-out. User may opt-out of receiving massages from Loyl.me via the User’s User Profile by calling or emailing Loyl.me and requesting that Loyl.me discontinue the use of such User’s User Profile
Taxes: Merchant will be responsible for all taxes that arise in any jurisdiction, including value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on or incident to the provision, sale or use of the Loyl.me Services. The foregoing excludes any tax based upon Loyl.me’s net income.
Loyl.me does not claim ownership of any content or data that Merchant designs, submits or makes available for use or inclusion in connection with the Loyl.me Services (including but not limited to any Content related to the Loyl.me Services). However, with respect to all feedback, comments, likenesses, data and other content that Merchant supplies to Loyl.me, including but not limited to Merchant’s name, logo, trademark, service marks or copyrights, Merchant grants to Loyl.me a perpetual, worldwide, unlimited, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content in connection with the Loyl.me Services and elsewhere for the purpose for which such content was submitted or made available, and also for the purpose of promoting the Loyl.me Services.
All of Merchant’s right, title and interest in and to any ideas, feedback, drawings, and/or content Merchant generates that lead directly or indirectly to improvements in the Loyl.me Services, new products introduced by Loyl.me, or new business lines (and all proprietary rights with respect thereto), are hereby assigned by Merchant to Loyl.me. Merchant also hereby waives any moral rights Merchant may have in and to the foregoing.
Member Account and Password: To access the Loyl.me Services, each Merchant or User must select a unique user name and password. Each Merchant or User will: (i) keep the user name and password confidential; (ii) not allow any other entity or person to use the user name or password, or gain access to Loyl.me’s database; (iii) be liable for all action taken by any user of the user name or password; and (iv) promptly notify Loyl.me if Merchant or User believes the user name or password has been used inappropriately or the confidentiality of the information made available through such use has been compromised.
The use of the user name or password does not grant Merchant ownership of such user name or password, which is retained by Loyl.me. Loyl.me may revoke a Merchant’s or User’s user name or password at any time for any or no reason and without liability to Merchant or User, as applicable.
Fees: Loyl.me may charge a fee to any Merchant for use of the Loyl.me Services. If such a fee is charged, it will be explained in a separate application or agreement between Loyl.me and Merchant. Merchant may not share a Loyl.me account between or among other Merchants. Loyl.me will not charge any fees directly to any Users.
Termination/Cancellation: Merchant or User may cancel its subscription to the Loyl.me Services or the User Services, as applicable, at any time by emailing or calling Loyl.me. Loyl.me may terminate, disable, restrict, suspend or cancel any Merchant’s or User’s access to the Loyl.me Services, in each case at any time with or without cause, and with or without notice. Loyl.me shall have no liability to any Merchant, User or third party because of such action. Notwithstanding the cancellation by Merchant of its subscription to the Loyl.me Services, or the termination, disabling, restriction or suspension of Merchant’s or any User’s access thereto (collectively, a “Termination”), Merchant shall remain liable and responsible for satisfying all financial and other obligations arising from its participation (including the payment of any and all applicable fees, charges and other amounts) that may have accrued prior to the effective date of the Termination (including, without limitation, to Loyl.me and any Customer). Merchant shall cease using materials, properties and portals provided by Loyl.me after Termination.
Limitation of Liability and Indemnification: Each Merchant and User agrees that Loyl.me, and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents, will benefit from, and be protected by, the following limitation of liability and warranty provisions:
(a) MERCHANT OR USER, AS APPLICABLE, AGREES AND ACKNOWLEDGES THAT LOYL.ME SHALL HAVE NO LIABILITY, EITHER IN TORT, CONTRACT OR IN COMBINATION THEREOF, FOR CLAIMS ARISING IN CONNECTION WITH THE LOYL.ME SERVICES OR USER SERVICES, EXCEPT IN THE CASE OF GROSS OR WILLFUL MISCONDUCT ON THE PART OF LOYL.ME. ANY SUCH CLAIMS ARE SUBJECT TO LIMITATIONS SET FORTH BELOW AND IN NO EVENT SHALL LOYL.ME BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REVENUES OR LOST BUSINESS OPPORTUNITIES.
(b) THE LIABILITY, IF ANY, OF LOYL.ME, WHETHER TO MERCHANT, USER OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY MERCHANT TO LOYL.ME DURING THE MONTH IN WHICH THE ACTION OR OMISSION GIVING RISE TO THE LIABILITY OCCURRED. IN NO EVENT WILL THE LIABILITY OF LOYL.ME IN CONNECTION WITH THE LOYL.ME SERVICE OR USER SERVICES EXCEED $500.
Furthermore, Merchant understands and acknowledges that not every Message sent by the Loyl.me Services will be received by the intended audience, and that Loyl.me is not responsible for the delivery of data, or any other problems that may occur. Loyl.me will use reasonable efforts to ensure that the Loyl.me Services are available on a 24/7 basis. However, there will be occasions when the Loyl.me Services will be interrupted for maintenance, upgrades and repairs, or because of failure of telecommunications that are beyond Loyl.me’s control. Loyl.me shall not be liable to Merchant for any modification, suspension or discontinuance of the Loyl.me Services.
Due to the open nature of Internet communications, no data transmission over the Internet can be guaranteed to be secure, and thus Loyl.me cannot guarantee that communications between a Merchant, User, and/or Customer, on the one hand, and Loyl.me, on the other, will be free from unauthorized access by third parties.
Jury Waiver: IN THE EVENT ANY CONTROVERSY OR CLAIM BETWEEN LOYL.ME AND MERCHANT OR USER SHALL ARISE IN ANY JUDICIAL OR LEGAL PROCEEDING, EACH SUCH PARTY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES ITS RESPECTIVE RIGHT TO TRIAL BY JURY OF SUCH CONTROVERSY OR CLAIM.
Merchant Dispute Notification: Merchant is responsible for the timely reconciliation of all issues related to the Loyl.me Services. Merchant will promptly examine all statements relating to Merchant’s account and immediately notify Loyl.me in writing of any errors. Merchant’s written notice must include: (i) Merchant name; (ii) the dollar amount of the asserted error; (iii) a description of the asserted error. This written notice must be received by Loyl.me within thirty (30) days after Merchant received the periodic statement containing the asserted error.
(a) If to Loyl.me, addressed and transmitted as follows:
5575 DTC Parkway
Greenwood Village, Colorado 80111
(b) If to Merchant, at the address provided as the billing address, or the FAX number or e-mail address and to the contact listed on Merchant application with Loyl.me.
(c) If to User, at the address or e-mail address provided to Loyl.me.
Publicity: Merchant agrees that Loyl.me may issue a press release or similar public announcement referencing Merchant as a customer of Loyl.me. Merchant also grants to Loyl.me a limited license to use Merchant’s and its affiliates’ names, logos, trademarks, service marks or copyrights in any advertising, promotional or instructional materials for Loyl.me or its affiliates’ services.
- The electronic application process allows Merchant to sign and agree to legally binding agreements online by providing its Electronic Consent;
- Merchant intends to use the electronic application process to provide its Electronic Consent;
- Merchant’s Electronic Consent is legally binding, and is governed by the Electronic Signatures in Global and National Commerce Act of 2000, and/or the Uniform Electronic Transactions Act governances (or an amended version thereof) in its state of residence, and Merchant agrees to be bound by these governances;
- The individual providing Electronic Consent on behalf of Merchant is authorized by Merchant to do so; and
- The Electronic Consent will be binding upon Merchant, and will not be construed by a court of law to have any less effect than a standard ink or paper signature.
- Loyl.me, on the one hand, and any Merchant or User, on the other hand, agree first to contact the other to advise of any such Dispute. The party alleging, asserting and/or initiating the Dispute shall contact the other party or parties who is or are alleged to be liable or responsible for such Dispute, and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the “Claim Notice”). Merchant or User, as applicable agrees to contact Loyl.me as contemplated above by calling or writing to: Claims Administrator, Loyl.me, 5575 DTC Parkway, Greenwood Village, Colorado 80111, Tel. No. 1 (800) 409-2520.
- The Claims Administrator for Loyl.me, on the one hand, and Merchant or User, on the other hand, shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party alleging, asserting and/or initiating the Dispute, would settle the Dispute (the “Settlement Amount”). If the parties do not agree to a Settlement Amount, or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration, as set forth below.
- The arbitration shall be governed by the Federal Arbitration Act (the “FAA”), 9 U.S.C. Sections 1-16. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. Any arbitrator’s decision and award is final and binding, subject only to those exceptions under the FAA. Loyl.me and Merchant or User, as applicable, agree the FAA’s provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
- Unless Loyl.me and Merchant or User, as applicable, agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAA’s Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the county where the principal address of the party against whom the Dispute is initially commenced is located – and for any claim against Loyl.me, that address shall be Loyl.me, 5575 DTC Parkway, Greenwood Village, Colorado 80111. The arbitrator shall have no authority to award punitive, consequential or other monetary damages not measured by the prevailing party’s actual damages, except as may be required by statute or as otherwise provided below.
- The award of the arbitrator shall be accompanied by a reasoned opinion.
- For Disputes of $10,000.00 or less that are initiated by Merchant or User, as applicable
(“Small Disputes”), the following rules shall apply notwithstanding anything to the contrary in the procedures or rules of the AAA:
- The arbitration shall be conducted in accordance with the AAA’s Expedited Procedures.
- The arbitrator shall include a finding as to whether the initiation of such Dispute was frivolous. If it is determined by the arbitrator not to be frivolous, then Loyl.me shall pay the fees and costs assessed by the AAA in administering the arbitration.
- If the arbitrator finds that Loyl.me is liable to Merchant or User, as applicable for an amount greater than the Settlement Amount presented by Loyl.me prior to the commencement of arbitration (after all offsets and counterclaims are applied), then Loyl.me shall be required to pay in addition to any award of the arbitrator an amount equal to the greater of (x) $500.00, or (y) the amount of Merchant’s or User’s, as applicable, reasonable attorneys’ fees.
- Merchant or User, as applicable, may choose to conduct the arbitration in the state of its principal address.
- LOYL.ME AND MERCHANT OR USER, AS APPLICBLE, EACH AGREE NOT TO PURSUE ARBITRATION ON A CLASS-WIDE BASIS. ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
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 Loyl.me prompt written notice of such requirement, permitting Loyl.me 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).
For the avoidance of doubt, at all times, all Confidential Information is the sole property of Loyl.me, even if its disclosure is authorized under this section, and all other restrictions in these Loyl.me Terms and Conditions will continue to apply to such Confidential Information.
Non-Disparagement: Merchant or User agrees not to disparage Loyl.me or its respective vendors, and promises to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of Loyl.me or its respective vendors.