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Merchant Terms and Conditions

1. General

During the length of the Service Agreement, ImLoyal will provide the ImLoyal services and/or programs (collectively, “ImLoyal Programs”) described in this Service Agreement executed by you, together with all exhibits attached thereto (the “Service Agreement”). In the event of any inconsistency among terms and conditions of the Service Agreement and these Terms and Conditions (collectively, sometimes referred to herein as the “Agreement”), the order of control shall be: (i) these Terms and Conditions, (ii) the Service Agreement, and (iii) any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Service Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Service Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Service Agreement executed by you, and, together with all attachments thereto, govern your use of all ImLoyal Programs and services.

2. Intellectual Property Rights.

(i) ImLoyal is the sole and exclusive owner of all right, title and interest in and to any data provided to ImLoyal by your customers or any end user to ImLoyal in connection with the ImLoyal Programs, including without limitation all e-mail and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Customer Data.

(ii) ImLoyal owns all right, title and interest in and to the ImLoyal Programs (which include, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the ImLoyal Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.

(iii) Without limiting any of ImLoyal’s rights set forth in the Agreement, ImLoyal reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed or posted on any tablet, the ImLoyal website, any portion of the ImLoyal Program, and/or within any print materials, including without limitation any information and/or content that, in ImLoyal’s view, contains content or links which do not meet ImLoyal’s specifications or requirements. In addition, ImLoyal shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the ImLoyal Program (including without limitation any mobile application and/or software) at any time.

3. Restrictions.

You: (i) will use the ImLoyal Programs solely for your internal business purposes; and (ii) will not, for yourself, any of your affiliates or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the ImLoyal Programs, (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the ImLoyal Programs, (c) copy any tangible versions of the Imloyal Programs, or (d) remove from any of the ImLoyal Programs any language or designation indicating the confidential nature thereof or the proprietary rights of ImLoyal. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the ImLoyal Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. ImLoyal retains the right, in its sole discretion but without any obligation on the part of ImLoyal to monitor or evaluate any communications, to approve, modify or refuse any ImLoyal-related communications or proposed communications or messages to your customers or any ImLoyal end users.

4. Fees; Pricing and Payment Terms; Taxes.

(i) ImLoyal’s current fees for the ImLoyal Programs and its services are set forth in the Service Agreement. The current service being provided will be at no setup or subscription charge or cost, however in-app features will come at a cost. ImLoyal reserves the right to amend this fee waiver payable for the ImLoyal Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.

(ii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the ImLoyal Programs.

(iii) Notwithstanding anything herein to the contrary, ImLoyal, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the ImLoyal Programs, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Service Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Service Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by ImLoyal to collect any unpaid amounts owed by you.

5. Term; Termination; Survival.

The ImLoyal solution term, as further described below, is effective upon the earlier of the arrival date or estimated arrival date of the solution as stated within the Service Agreement. All other subsequent changes or modifications to the Service Agreement are effective upon the completion of the merchant purchase order. You may amend your contract to include additional ImLoyal features by email or written notice. When you send ImLoyal the email or written notice to include or remove additional features, you are providing explicit authorization for ImLoyal to process payment on your existing ImLoyal account and method of payment without any further authorization necessary from you.

The Agreement will remain in full force specified in the Service Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically renew on a month–to–month Subscription Plan at the then-current rates to be negotiated.

Subscription Cancellation within the Contract Term – Customers enrolled in 6 Monthly or Annual subscription plans shall provide at least sixty (60) days’ written cancellation notice.

Other Events – Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, ImLoyal may terminate the Agreement and/or your access to one or all ImLoyal Programs in the event you fail to remain current in all fees due and owing to ImLoyal or in the event you breach any of your obligations under the Agreement. ImLoyal will cease to collect the monthly subscription fee at the point in time in which ImLoyal has received your returned ImLoyal Kit.

In the event of any termination of the Agreement or any ImLoyal Program, ImLoyal shall be entitled to send e-mail and/or other communications to some or all of your loyalty program members, notifying each such member of your termination of the ImLoyal Program in your organization. In addition to the foregoing permissible e-mail, ImLoyal shall be entitled to take other actions, at its discretion, to assist your loyalty program members in protecting the points earned within the ImLoyal Program and providing them an opportunity to redeem points earned.

In addition, all items in the ImLoyal Kit must be returned to ImLoyal in specified return packaging provided by ImLoyal. If you were not previously provided with specified return packaging, ImLoyal will provide you with specified return packaging at no cost to you, otherwise you will be charged for packaging materials. You are responsible for all return shipping charges and for any damage incurred in the shipping process. If any item in the ImLoyal Kit is not returned, ImLoyal will charge you for the cost of the item not returned. ImLoyal will prorate the last monthly subscription fee based on the date the ImLoyal Kit is received by ImLoyal. You may be required to fill out an exit survey in order to complete any cancellation request. ImLoyal may refuse to accept the return of its equipment until the exit survey is completed. If you do not complete the exit survey in a timely fashion, you may be charged a fee for missing equipment until the exit survey is completed. Any provision of the Agreement, which contemplates performance or observance subsequent to any termination, or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect. Upon expiration or termination of this agreement all items in the ImLoyal Kit must be returned to ImLoyal within 14 days.

6. Representations and Warranties; Disclaimer.

(i) ImLoyal warrants that ImLoyal has the authority to enter into this Agreement.

(ii) You represent, warrant and covenant to ImLoyal that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of the ImLoyal Kit and/or all equipment provided by ImLoyal to you and maintain all such equipment in good working order; (c) you will only use the ImLoyal Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (d) you will not use any ImLoyal Program to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol, law or convention.

(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, IMLOYAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, IMLOYAL DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE IMLOYAL PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY IMLOYAL PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF IMLOYAL PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. IMLOYAL PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL IMLOYAL BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY IMLOYAL PLATFORM OR APPLICATION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE IMLOYAL PROGRAMS ARE TO OPERATE.

7. Confidential Information.

Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of ImLoyal. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.

8. Dispute Resolution; Governing Law.

In the event of a reward dispute or mistake between a Merchant and User, ImLoyal may in its sole discretion and without liability of any kind unilaterally make adjustments to User reward points (it being understood that ImLoyal shall not be (i) obligated to make any such adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or (ii) be liable to any party for any damages, expenses or liabilities arising out of any such dispute). To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the laws of Ghana and you expressly agree to the exclusive jurisdiction for any claim or dispute with ImLoyal in the law courts within the jurisdiction of Ghana.

9. Indemnification.

You will defend, indemnify, and hold ImLoyal and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with any ImLoyal Program or otherwise related in any way to any ImLoyal Program, your unauthorized use or misuse of the ImLoyal Programs or any unauthorized combination of any ImLoyal Program with any hardware, software, products, data or other materials not specified or provided by ImLoyal.

10. Limitation of Liability.

ImLoyal’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to ImLoyal under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will ImLoyal be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services or any ImLoyal Program, however caused and regardless of theory of liability. In addition, ImLoyal will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any ImLoyal product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.

11. Notice.

Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.

12. Assignment.

You may not, without the prior written consent of ImLoyal, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void; provided, however, that in the event of a sale of substantially all of your assets or equity to a third party or any merger of your entity with an into a third party, this Agreement shall be deemed, without any further action on the part of any party, to automatically be assigned to and assumed by the acquirer in such transaction and as such, shall be binding on such acquirer. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

13. No Third Party Beneficiaries.

The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

14. Amendment; Waiver.

This Agreement may be changed by ImLoyal upon posting an updated version of the Agreement at ImLoyal’s website and/or within the applicable ImLoyal Program, any such change to become effective 10 business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

15. Severability.

If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.

16. Force Majeure.

Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to ImLoyal provided prior to the force majeure event.

17. Independent Contractor.

The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

18. Compliance with Laws.

Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

19. Entire Agreement.

The Agreement (including, without limitation, the Service Agreement and these Merchant Terms) constitute the entire agreement between ImLoyal and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.

20. Goal Gradient Loyalty Participation

ImLoyal may, at its sole discretion from time to time, elect to make point adjustments for first-time member visits (such as, by way of example, offering members the opportunity to earn extra points in connection with the first visit to a given Merchant location). These adjustments are intended to encourage greater follow-up participation to your program. This feature is automatically enabled with the onboarding of your loyalty program; provided, however, that you may elect to opt out of this program by providing written notice of such opt-out to ImLoyal.

21. Membership Status Programs

You hereby agree and acknowledge that ImLoyal may, from time to time, offer and administer a program currently referred to as the “Membership Status” program. Pursuant to such program, ImLoyal members that are sufficiently active using the ImLoyal Programs can achieve various levels of status. ImLoyal shall have sole discretion in determining the activity required to obtain each of the status levels within the Membership Status program from time to time. ImLoyal members that have achieved any such level of status may be entitled to receive discounts on points and/or other benefits across the entire ImLoyal network, including without limitation at each of your locations. You hereby agree to honor all such discounts and recognize such status, except to the extent you have opted out of participation in the ImLoyal Membership Status program by written notice.

22. Merchant Account, Password and Security

You are responsible for maintaining the confidentiality of your merchant password or account, as applicable, and account, if any, and are fully responsible for any and all activities that occur under your password or account, as applicable. You agree to immediately notify ImLoyal of any unauthorized use of your password or account or any other breach of security, and ImLoyal will not be liable for any loss or damage arising from your failure to comply with this Section.

23. Acceptable Use – Prohibited Actions

ImLoyal works hard to keep its system clean, but ImLoyal also counts on its customers to pitch in. As such, you may not:

1. Send Spam.
2. Share your password.
3. Import or incorporate any of this information into any lists, emails or uploads to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information of any kind.
4. Use an outside unsubscribed process.

Copyright © ImLoyal 2016