Please read these terms and conditions (“Terms”) carefully before using the Service (defined below). In particular, we draw your attention to clause 12 (Limitation of Liability).
By accessing or using the Service and by clicking to indicate you have read and agreed these terms when ordering, you agree to be legally bound by these Terms.
(1) Loyal Zoo Limited incorporated and registered in England and Wales with company number 8398662 whose registered office is at 111 Power Road, London W4 5PY, United Kingdom; and
(2) The person whose details are set out in the Subscription Particulars (“Customer”).
(A) Loyal Zoo Ltd is in the business of, inter alia, marketing and licensing a software application and platform which it makes available to Subscribers (defined below) via the internet and/or certain mobile devices for the purpose of the Subscriber using the App (defined below) to: (i) view (in real time) the rewards that have been made to the subscriber for his/her custom at retailer(s) or service provider(s) which have subscribed to the Loyalzoo loyalty programme, and/or (ii) to check-in (in real time) with the retailer(s) or service provider(s) with a view to having his/her reward programme updated.
(B) In connection with the functionality and operation of the App, Loyal Zoo is able to provide the retailer or service provider with the functionality of an online platform through which the retailer or service provider is able to update the rewards of relevant Subscribers through the App.
(C) The Customer is a retailer or service provider and wishes to use Loyal Zoo’s service in its business operations. Loyal Zoo has agreed to provide and the Customer has agreed to take and pay for Loyal Zoo’s service subject to these Terms.
1.1 The definitions and rules of interpretation in this clause apply in these Terms.
App: the software based application which is made available by Loyal Zoo to Subscribers via the internet and certain mobile devices as more particularly set out in recital (A), together with any Improvements.
Business Day: any day which is not a Saturday, Sunday, or Christmas Day.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
Customer Data: the data inputted by the Customer or Loyal Zoo on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation: any documents made available to the Customer by Loyal Zoo online via the Website relating to the Services.
Effective Date: the date that the Customer starts using the Service.
Improvements: any technical advances, modifications, enhancements, development, methods, processes which change, improve or further develop the relevant product or service.
Services: the subscription services provided by Loyal Zoo to the Customer under these Terms, as more particularly described on the Website.
Software: the online software applications and platforms provided by Loyal Zoo as part of the Services.
Subscriber: means a relevant person who either (i) downloads and uses the App on his/her relevant mobile device, or (ii) uses the App through the internet.
Subscription Fees: the subscription fees payable by the Customer to Loyal Zoo for the Services, as set out in the Subscription Particulars.
Subscription Term: commencing on the Effective Date and ending on termination of these Terms.
Subscription Particulars: means the particulars displayed on the Website relating to specific terms relating to the Customer’s use of the Services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: www.loyalzoo.com or such other web address notified by Loyal Zoo to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
1.2 Clause, Subscription Particulars and paragraph headings shall not affect the interpretation of these Terms. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and (where relevant) that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes but not e-mail. References to clauses are to the clauses of these Terms.
2.1 Subject to the restrictions set out in this clause 2 and the other terms and conditions of these Terms, Loyal Zoo hereby grants to the Customer a non-exclusive, non-transferable right to use the Services and the Documentation during the Subscription Term solely for the Customer’s business operations.
2.2 The Customer undertakes that only its employees shall access and use the Services.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) causes damage or injury to any person or property; and Loyal Zoo reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties except Subscribers; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Services and/or Documentation available to any third party, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
2.5 The Customer shall:
(a) follow all reasonable instructions of Loyal Zoo from time to time including but without limitation in connection with the use and marketing of the Service, the marketing of the App to customers of the Customer;
(b) comply with the Documentation;
(c) use reasonable endeavours to ensure that all Customer Data is at all times up to date and accurate;
(d) not engage in any conduct which in the reasonable opinion of Loyal Zoo is prejudicial to the business and/or goodwill of Loyal Zoo; and
(e) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Loyal Zoo.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.1 Loyal Zoo shall, during the Subscription Term, use reasonable endeavours to provide the Services on and subject to the terms of these Terms provided always that Loyal Zoo may change, suspend, or discontinue all or part of the Services at any time, with or without reason. The Customer acknowledges that the operation of the Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Loyal Zoo shall not be responsible to the Customer or any other party for any such interruptions, errors or problems or an outright discontinuance of the Service. Loyal Zoo has no obligation to continue producing or releasing new versions of the Service.
3.2 Subject always to Clause 3.1, Loyal Zoo shall use reasonable endeavours to keep the Services operational and available 24 hours a day, seven days a week, except for:
(a) planned maintenance of which Loyal Zoo shall use reasonable endeavours to provide prior notice; and
(b) unavailability of the Services caused by circumstances beyond Loyal Zoo’s control included but not limited to, acts of God, act of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems or internet service provider failures or delays..
4. CUSTOMER DATA
4.2 If Loyal Zoo processes any personal data on the Customer’s behalf when performing its obligations under these Terms, the parties record their intention that the Customer shall be the data controller and Loyal Zoo shall be a data processor and in any such case: (a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside of the country where the Customer is located in order to carry out the Services and Loyal Zoo’s other obligations under these Terms; (b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Loyal Zoo so that Loyal Zoo may lawfully use, process and transfer the personal data in accordance with these Terms on the Customer’s behalf; (c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (d) Loyal Zoo shall process the personal data only in accordance with the terms of these Terms and any lawful instructions reasonably given by the Customer from time to time; and (e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5. THIRD PARTY PROVIDERS
6.1 Loyal Zoo:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.2 These Terms shall not prevent Loyal Zoo from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
7. CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) comply with all applicable laws and regulations with respect to its activities under these Terms;
(b) ensure that the Customer use the Services and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any user’s breach of these Terms;
(c) obtain and shall maintain all necessary licences, consents, and permissions necessary for Loyal Zoo, its contractors and agents to perform their obligations under these Terms, including without limitation to the Services;
(d) ensure that its network and systems comply with the relevant specifications provided by Loyal Zoo from time to time; and
(e) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Loyal Zoo’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees to Loyal Zoo in accordance with this clause 8 and the Subscription Particulars.
8.2 Subject to the Subscription Particulars, the Subscription Fees are payable monthly in advance on the date of each month corresponding to the date of the month whence service commenced, and in accordance with any policies relating to payment referred to in the Subscription Particulars and/or Website.
8.3 If Loyal Zoo has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Loyal Zoo, Loyal Zoo may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Loyal Zoo shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
8.4 All amounts and fees stated or referred to in these Terms are (a) non-cancellable and non-refundable; and (b) are exclusive of value added tax or other applicable sales taxes, which shall be added to Loyal Zoo’s invoice(s) at the appropriate rate.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that Loyal Zoo and/or its licensors own all intellectual property rights in the Services, the App and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services, the App or the Documentation.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) is or becomes publicly known other than through any act or omission of the receiving party; (c) was in the other party’s lawful possession before the disclosure; (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (e) is independently developed by the receiving party, which independent development can be shown by written evidence; or (f) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these Terms. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms.
10.3 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Loyal Zoo’s Confidential Information. Loyal Zoo acknowledges that the Customer Data is the Confidential Information of the Customer.
10.5 This clause 10 shall survive termination of these Terms, however arising.
11.1 The Customer shall defend, indemnify and hold harmless Loyal Zoo against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (a) the Customer’s use of the Services and/or Documentation, and/or (b) the Customer’s breach of these Terms; and/or (c) any claim made by a Subscriber against Loyal Zoo resulting from the acts or omissions of the Customer including but without limitation as a result of the Customer providing incorrect or out of date information or failing to provide any information at all for the App.
11.2 Loyal Zoo shall, subject to clause 11.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Loyal Zoo is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Loyal Zoo in the defence and settlement of such claim, at Loyal Zoo’s expense; and
(c) Loyal Zoo is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, Loyal Zoo may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event shall Loyal Zoo, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services or Documentation by anyone other than Loyal Zoo; or (b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Loyal Zoo; or (c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Loyal Zoo or any appropriate authority.
11.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Loyal Zoo’s (including Loyal Zoo’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 Subject to the provisions of clause 11.5 this clause 12 sets out the entire financial liability of Loyal Zoo (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of these Terms; (b) any use made by the Customer of the Services and Documentation or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
12.2 Except as expressly and specifically provided in these Terms:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Loyal Zoo shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Loyal Zoo by the Customer in connection with the Services, or any actions taken by Loyal Zoo at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
12.3 Nothing in these Terms excludes the liability of Loyal Zoo: (a) for death or personal injury caused by Loyal Zoo’s negligence; or (b) for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
(a) Loyal Zoo shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and
(b) Loyal Zoo’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13. TERM AND TERMINATION
13.1 These Terms shall, unless otherwise terminated as provided in these Terms, commence on the Effective Date and shall continue indefinitely, unless (subject to clause 13.2) either party terminates at any time by cancelling, and the Customer may cancel at any time as specified on the Website.
13.2 If these Terms are terminated for whatever reason, the Customer shall not be entitled to any refund of any Subscription Fees paid by the Customer in advance.
13.3 On termination of these Terms for any reason:
(a) all licences granted under these Terms shall terminate at the end of the paid subscription period;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Customer will be allowed to extract their user and transactional data for a period of one month, after this period Loyal Zoo may destroy or otherwise dispose of any of the Customer data in its possession; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14.1 Loyal Zoo shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Loyal Zoo or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
14.2 A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.3 Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
14.4 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.5 These Terms, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
14.6 The Customer shall not, without the prior written consent of Loyal Zoo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms. Loyal Zoo may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
14.7 Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.8 These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
14.9 Any notice required to be given under these Terms shall be in writing and shall be sent by e-mail to the other party at its address set out in the Subscription Particulars (in the case of the Customer) and the e-mail address on the Website for Loyal Zoo. A notice delivered by e-mail shall be deemed to have been received at the time of transmission.
14.10 These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
Copyright © 2014 – Loyal Zoo Limited and its licensors. All rights reserved.