Loyalt Pty Ltd (ACN 630 457 215)

THIS AGREEMENT made

BETWEEN

Loyalt Pty Ltd (ACN 630 457 215) of 147 Knox Street, Watson, Australian Capital Territory,

2602 ("Licensor")

- and -

You ("Licensee")

(the "Parties")

 

1.     Definitions and interpretation

1.1.   Definitions

In this Agreement (including the recitals) unless the context otherwise requires:

Agreement means this agreement and its schedule;

Product means Loyalt client app as detailed in Schedule 1;

Consumer Product means Loyalt customer app as detailed in Schedule 2

Terms means the terms and conditions of this Agreement.

1.2.   Interpretation

In this Agreement unless the context otherwise requires:

a)    headings are for convenience only and do not affect its interpretation and construction;

b)    the singular includes the plural and vice versa;

c)     words importing a gender include other genders;

d)    where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

e)    a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

f)     "includes" is not a word of limitation;

g)    a reference to any thing is a reference to the whole and each part of it;

h)    a reference to a group of persons is a reference to all of them collectively and to each of them individually; and

i)      a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.

2.     Acceptance

2.1.   This Agreement is between you and the Licensor, and governs the Products made available to you.

2.2.   Upon:

a)    selecting the 'Accept' option;

b)    payment of the license fee for the Product at the point of purchasing the licence for the Product; or

c)     upon downloading, installing or using the Product (whichever comes first), you are granted a revocable, non-transferable, non-exclusive and limited license ("License") strictly in accordance with the Terms of this Agreement.

d)    If you do not agree to the Terms of this Agreement, you must not install, use, or copy the Product.

3.     License grant

3.1.   This Agreement entitles you to

a)             install and use the Product on your mobile and gives permission to the employee of your store to use the services of the app

4.     Limitations

4.1.   Limitations on transfer

You may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Products.

4.2.   Limitations on use

You may not:

a)    share the Licence, or contents of the Product, with others;

b)    decompile, "reverse engineer", disassemble, or otherwise attempt to derive the source code for the Product;

c)     post the Product or part of the Product on any website; or

d)    use the Product for commercial purposes.

4.3.   Limitations on derived works

You may not modify the Product, create derivative works based upon the Product, or use the Product to develop any product having the same primary function as the Product.

4.4.   Limitations on alteration

a)    modify the Product or create any derivative work of the Product or its accompanying documentation. Derivative works include but are not limited to translations; or

b)    alter any files or libraries in any portion of the Product.

4.5.   Limitations on copying

You may not copy any part of the product except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.

5.     Ownership

Loyalt Pty Ltd or its subsidiaries, affiliates, and suppliers retain all rights, title and interest, including all copyright and intellectual property rights, in and to, the Product and all copies thereof.

6.     Warranties and exclusions

6.1.   Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Loyalt Pty Ltd and its subsidiaries, affiliates, and suppliers ("Implied Terms"). If these Implied Terms apply, Loyalt Pty Ltd's liability will be limited at its option to resupply, repair or replacement of the Product or the cost of such resupply, repair or replacement, to the extent permitted by law.

6.2.   Unless otherwise explicitly agreed to in writing by Loyalt Pty Ltd, Loyalt Pty Ltd, subject to the Implied Terms, all representations, guarantees, conditions and warranties of any nature are expressly excluded.

6.3.   Nothing in this clause excludes, restricts or modifies your rights under an Implied Term.

7.     Exclusion of damages

Subject to any Implied Term, Loyalt Pty Ltd, its directors, officers, employees, or agents will not be liable to you or any other party for indirect, consequential, special, incidental, punitive or exemplary damages of any kind (including lost of revenues or profits or loss of business) arising in connection with these Terms, the Product, any software for the Product or any support services for the Product, whether based on contract, tort, statute, or any other legal theory.

8.     Limitation of liability and remedies

To the extent that the applicable jurisdiction limits Loyalt Pty Ltd's ability to disclaim any implied warranties, this disclaimer shall be effective to the maximum extent permitted.

9.     Licensee indemnity

You will indemnify Loyalt Pty Ltd, its directors, officers, employees, agents and contractors in full against any liability, loss, damages, costs and expenses as a result of or in connection with your use of the Product, including but not limited to, any modification by you of the Product which causes the Product to infringe the intellectual property rights of a third party.

10.  Variation of Terms

Loyalt Pty Ltd reserves the right to amend these Terms from time to time without notice to you and you will be subject to the Terms in force at the time you purchase the Licence for the Product or download the Product whichever is applicable.

11.  Termination

Without prejudice to any other rights, Loyalt Pty Ltd may terminate this Agreement immediately and without further notice if you fail to comply with the Terms of this Agreement.  In such event, you must destroy all copies of the Product.

12.  General provisions

12.1.   Any provision of, or the application of any provision of this Agreement, which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition

12.2.   Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

12.3.   The failure, delay, relaxation or indulgence on the part of a part in exercising, in part or whole, any power, right or remedy conferred upon that party by these Terms shall not operate as a waiver of that power, right, or remedy.

12.4.   This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.

12.5.   If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.

12.6.   This Agreement shall be governed by and construed in accordance with the laws of Australian Capital Territory.

13.  Services

13.1.   The Client hereby agrees to engage the Contractor to provide the Client with the following services (the "Services"):

a)    Ability to create loyalty program: The application distributed to the client will enable them to create loyalty programs which will be displayed to public once the store adds the loyalty program.

b)    The loyalty program can be of two types. Point based rewards program where every purchase made by a customer on the client’s store will produce points for the customer. And, the Stamp based reward program will allow the client to create a program to provide a reward to the customer after a certain number of transactions at the store. A transaction will be defined by the client for all the stores using the service.

c)     Ability to send notifications: The client could send notifications through a store to its customers announcing any offers or any kind of advertising.

d)    Ability to post offers on the store page: Each of the client’s store would be provided with an offers page where the client can post offers visible to the public.

14.  Payment

You understand that use of the Services may result in charges to you for the services or goods you receive from the loyalt app. After you have received services through your use of the Service, LoyalT will facilitate your payment of the applicable Charges. LoyalT understands that few services are free of charge while other services incur charges. Charges will be inclusive of applicable taxes required by law. Charges paid by you are final and non-refundable, unless otherwise determined by LoyalT.

 

LoyalT might take a sign-up fee with a 30 days “free” trial. “Free” means that the sum of money paid by you to LoyalT would be credited to the Product and could be used to use other paid services offered by the Product.

Consumer App and the services provided within the consumer app will be free of cost to all the users and does not have any in-app purchases. In-app purchases refer to the service provided by Apple and Google in iOS and Android platform respectively.

 

 

LoyalT wallet refers to a digital wallet inside the Product that contains a sum of money which can be used for paid services across all the LoyalT products. All Charges are due immediately and payment should be completed by you before your LoyalT wallet gets credited with the amount included in the sales package, after which LoyalT will send you a receipt by email. Sales package refers to different options that LoyalT will provide you to choose from to recharge your LoyalT wallet with. The cost of the sales package that you choose to buy can vary from the sum of money that is transferred to your LoyalT wallet in the Product. The money transferred to your wallet for a particular sales package is referred to as the “worth” of the package1. Both the cost of the package and the worth of the package would be mentioned clearly in the sales package and LoyalT reserves the right to refuse a refund after a sales package is bought by you. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that LoyalT may use a secondary payment method in your Account, if available2.

 

As between you and LoyalT, LoyalT reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in LoyalT’s sole discretion. LoyalT will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. LoyalT may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from LoyalT at any time, in which case you may be charged a cancellation fee.

 

This payment structure is intended to fully compensate LoyalT for the services or goods provided. You understand and agree that, while you are free to provide additional payment as a gratuity to LoyalT, you are under no obligation to do so. Gratuities are voluntary.

 

15.  GOVERNING LAW: This Agreement is governed by the laws of Australia. The parties submit to the exclusive jurisdiction of the courts of ACT, Australia and the courts of appeal from them, and waive any rights that they may otherwise have had to challenge the convenience of that forum.