Algemene voorwaarden

Please read the following important terms and conditions before you purchase any services, hardware or materials through the Website or the Merchant App. These Terms were published on 1st September 2021. For previous versions, see here.

1. Contracting parties
   1. These Terms set out the legal agreement between you and Smart Points Limited (trading as LoyLap and Facilipay), a company incorporated under the laws of Ireland under company number 512270 with registered office at Suite 12, Guinness Enterprise Centre, Taylor’s Lane, Dublin 8, Ireland (‘LoyLap’, ‘Facilipay’, ‘The Company’, ‘we’, ‘our’ or ‘us’) governing your purchase, receipt and use of the Services and any Hardware and Materials. Our VAT number is 9831551D.
   2. If you will be using the Services and/or purchasing Hardware and Materials on behalf of an organisation, you agree to these Terms on behalf of that organisation and you represent and warrant that you have the authority to do so. In such case, “you” and “your” will refer to that organisation.
2. Our contract and changes to these Terms
   1. You indicate your agreement to these Terms by clicking or tapping on the ‘Accept’ button indicating your acceptance of these Terms.
   2. We may make changes to these Terms from time to time and may do so for a variety of reasons including to reflect changes in or requirements of Applicable Law, new features or changes in business practices. The most recent version of these Terms will be posted on our Website and our Merchant Apps and you should regularly check for the most recent version. If we make changes to these Terms we will notify of the same in a durable medium. If you do not agree to these changes you will have the opportunity to terminate these Terms on providing fifteen (15) days’ written notice to support@loylap.com. If you continue to use the Services after the changes become effective you will be considered to have accepted those changes. Any amendment to these Terms you purport will not bind us.
3. Definitions and interpretation
   1. In these Terms, unless the context otherwise requires,:
      1. all capitalised terms shall have the meaning given to them in Clause 24; and
      2. the headings shall not be considered a part of or affect the construction or interpretation of these Terms; words used in the singular include the plural, the plural includes the singular, and the neuter gender includes the masculine and the feminine; any reference to ‘persons’ includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality); any reference to a ‘person’ includes his successors, personal representatives and permitted assigns; any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and any reference to any statute, statutory provision or to any order or regulation shall be construed as a reference to that statute, provision, order or regulation as extended, modified, replaced or re-enacted from time to time and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom.
4. Services
   1. We will use reasonable endeavours to supply the Services: (i) in accordance with these Terms and Applicable Law in Ireland; (ii) with reasonable care, skill and diligence; and (iii) using skilled, experienced and qualified personnel.
   2. While we strive to ensure the continuous availability of our Merchant App and our Website, there may be times where we have to undertake scheduled or unscheduled maintenance. You acknowledge and accept that our Merchant App, our Websites and the Services may not be available at all times.
   3. We are 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 you acknowledge and agree that our Merchant Apps, our Websites and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
   4. Our provision of our Merchant Apps, our Websites and the Services is and shall be on a non-exclusive basis. Nothing in these Terms prevent us from providing our Merchant Apps, our Websites or the Services or any other services to any other person.
   5. Merchant support is available for the duration of your subscription for the Services from 09:00 to 22:00 GMT Monday to Friday and 09:00 to 17:00 GMT Saturday via email at support@loylap.com, telephone United States and Canada: 800-975-0122 United Kingdom: 02082 438531 Ireland: 01 4370 604 and/or through the live-chat feature on our Website and our Merchant App. Depending on the Services you have subscribed for, and where agreed by us in writing, you may be entitled to additional support outside of our standard support hours.
   6. We reserve the right to modify, suspend or discontinue our Website, our Merchant App and/or one or more parts and/or features of the Services at any time in our discretion and without liability to you. This is without prejudice to your right of termination as provided in these Terms.
5. Merchant Account
   1. By agreeing to these Terms, and as a condition to your use of our Merchant Apps and the Services, you represent and warrant to us that you: (i) are at least eighteen (18) years of age; (ii) are eligible to register for and use our Merchant Account and to use the Services; (iii) are authorised to conduct business in the jurisdiction in which you are using the Services; and (iv) have the right, power and legal capacity to enter into and perform your obligations under these Terms as or on behalf of the Merchant.
   2. In order to request and receive the Services, you must register for and maintain a valid Merchant Account with us. A Merchant Account can only be created through our Website or our Merchant App. Our Merchant App should be downloaded to a Compatible Mobile Device or a POS. Only one Merchant Account can be used in respect of one Premises. You must treat your username and password you choose for our Merchant Account as confidential, and you must not share them with anyone else. Once you have been provided with any identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential and must not disclose it to any third party.
   3. All information and/or documentation provided to us during the Merchant Account registration process and throughout your receipt of the Services and your Merchant Account must be accurate, true and complete. You must promptly update this information as necessary to keep it accurate, true and complete during the period of your subscription.
   4. By creating a Merchant Account, and as a condition of your use of our Merchant App, our Websites and the Services, you represent and warrant that you will not conduct or facilitate any Transaction or create or operate a Loyalty Program or Campaign or otherwise use the Services and/or any Hardware and Materials: (i) for any purpose that is unlawful under Applicable Law or prohibited by or inconsistent with these Terms; (ii) to commit any fraud or to engage in any dishonest activity; (iii) in any manner that harms or may harm or endanger minors or any other person; (iv) in connection with any service, use or purpose where the failure of the Services (or any part thereof) may endanger the health or life of any person or cause damage or loss to any tangible property or the environment; (v) to promote an unlawful activity; (vi) to conduct an activity which requires any permits, licences, consents, certificates, registrations, notifications or other authorisations from a regulatory, governmental or similar body, which you do not have; (vii) in a way which in the opinion of The Company could negatively impact our interests or otherwise bring The Company’s brand(s) into disrepute; or (viii) to promote, market and/or sell any immoral or distasteful goods or services (as determined by us in our sole opinion) (each a “Prohibited Activity”).
   5. You are solely responsible for ensuring that all of Transactions including all sales made through Online Ordering, your creation and/or operation of a Campaign and/or Loyalty Program and associated Rewards and your use of the Services are compliant with these Terms and Applicable Law, including any applicable tax law, consumer laws, data protection and privacy laws, advertising laws and codes, food and product safety, laws governing prepaid cards, gift vouchers and special offers such as rebates and coupons.
   6. You agree to make available to Members, who access or avail of any Online Ordering, your Campaigns, Loyalty Programs or Rewards, any terms and conditions applicable to same and any other terms and conditions, notices or otherwise required to be furnished to Members under Applicable Law. You agree to guarantee and promptly provide Rewards to Members who fulfil the requirements in respect of redemptions as published by you.
   7. You acknowledge and agree that The Company is not and shall not be a party to any Transactions or the contractual relationship between you and any Member who orders or purchases any goods or services from you using a Transaction or otherwise or who accesses or avails of any of your Campaigns, Loyalty Programs or Rewards.
   8. You are solely responsible for logging out of your Merchant Account when you are not using the Services. We take absolutely no responsibility and shall not be liable for and you hereby unconditionally and irrevocably indemnify and keep fully and effectively indemnified and hold harmless The Company in full and on demand from and against all Liabilities (whether direct or indirect and including loss of profit and loss of reputation) incurred by us as a result of, arising from or in connection with any Transactions under your Merchant Account, including any misleading Rewards sent to a Member or Reward provided without your consent or knowledge. It is solely your responsibility to ensure that any Rewards applied on behalf of your business are legitimate and fully redeemable by Members.
6. Content
   1. When creating your Merchant Account, you will be asked to provide a name for your business which will appear on the Services (the “Business Name”). It is strongly recommended that the Business Name is reasonably descriptive and enables your business to be clearly identifiable to Members. When creating your Merchant Account, you will also be asked to provide a logo for your business (the “Business Logo”) and images of your Premises which will appear on the Services. You must use a clearly identifiable Business Logo and provide high-quality images of your Premises. You shall use all reasonable endeavours to ensure that all Content is at all times current, accurate, true and complete.
   2. Merchants and Members may be given the opportunity to upload Content to the Services. Merchants may also be given the opportunity to provide Content to us to be incorporated into any customised Hardware and Materials provided under Clause 8. You represent and warrant that:
      1. you own all Intellectual Property Rights in and to any Content you upload to the Services or provide to us including your Business Name and Business Logo or you have acquired all licences and/or permissions necessary to use and upload any Content to the Services and to grant to us the rights described in Clause 6.3; and
      2. use (including the uses described in Clause 6.3) of the Content on the Services does not infringe the Intellectual Property Rights or other rights of any third party.
   3. For any Content that you upload to the Merchant App or the Services and/or provide to us for incorporation into any Hardware and Materials, you hereby grant The Company a non-exclusive, royalty-free, fully paid-up, perpetual, transferable and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform and publicly display that Content throughout the world in any media and on any materials in order to provide and promote the Services and our business, including for our own advertising and marketing purposes. You retain all rights in your Content, subject to the rights granted to us in these Terms.
   4. The Company excludes any and all liability in respect of Content, whether provided or uploaded by you, other Merchants or Members. We do not endorse any Content uploaded and/or provided to us by you, Merchants or Members. Uploading or in any way disseminating Prohibited Material on the Merchant Apps or Services is considered a breach of these Terms and may result in your Merchant Account and your receipt of the Services being suspended and/or terminated.
   5. We are not obliged to monitor or moderate any Content uploaded by Merchants or Members. We may remove or edit any Content whether they are moderated or not.
   6. Without limiting the foregoing provisions of this Clause 6, as between you and The Company, we exclude any and all liability in respect of infringement and/or alleged infringement of Intellectual Property Rights and/or other rights caused in whole or in part by Content whether provided or uploaded by you, other Merchants or Members. We respect the Intellectual Property Rights of others and we ask you to do the same. We reserve the right to terminate or suspend provision of the Services to you if you breach or it is alleged that you have breached the Intellectual Property Rights of any third party further to or in connection with your use of the Services. If you believe that your work has been posted through the Services in a way that constitutes infringement of your Intellectual Property Rights or other rights, please contact us through the Services, providing details of the alleged infringement.
   7. You unconditionally and irrevocably indemnify and shall keep fully and effectively indemnified and hold harmless The Company in full and on demand from and against all Liabilities (whether direct or indirect and including loss of profit and loss of reputation) suffered or incurred by The Company as a result of, arising from or in connection with any claim made against us for actual or alleged infringement of any third party’s Intellectual Property Rights and/or other rights arising out of or in connection with the publication, display or other use of Content provided or uploaded by you.
   8. If you provide any testimonial or review relating to The Company and/or the Services through any online review platform you acknowledge that we may publish your testimonial or review on our Websites in accordance with the terms you agreed with the online review platform when providing your testimonial or review. Your testimonial or review may be published by us during and after your subscription for the Services.
7. The Software
   1. In order to use the Services, you must download our Merchant App onto a Compatible Mobile Device or a POS. You will be able to begin using our Merchant App by logging in to our Merchant App with the email address and password you chose during the Merchant Account registration process.
   2. While we take reasonable care to ensure that the Websites, the Merchant Apps and the Services do not contain any viruses, bugs or malware, we accept no responsibility or Liabilities in the event that any damage or corruption is caused to any device (including a Compatible Mobile Device or POS) or data from downloading, updating or using our Merchant Apps, using the Websites, the Services and/or any other software made available by us from time to time.
   3. You are required to promptly install, and/or permit any automated installations of, any and all software updates made available by us and/or the manufacturer and operating system of your Compatible Mobile Device or POS from time to time in order to continue using the Services. Your failure to install or allow any required updates may negatively impact your use of the Services.
   4. You are solely responsible for making all arrangements necessary for you to have access to our Merchant App, the Websites and the Services including internet access. You are also solely responsible for ensuring that all persons who access our Merchant Apps, the Websites and/or the Services through your internet connection are aware of these Terms, and that they comply with them in full.
   5. You must not access or use the Merchant Apps or the Services using any device or point of sale system (including any Compatible Mobile Device or POS) modified contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls (e.g. ‘jailbreaking’). You acknowledge and agree that the use of any such modified device or point of sale system to access and/or use the Services is expressly prohibited, constitutes a breach of these Terms, and is grounds for termination of your Merchant Account and your access to the Services.
8. Hardware and Materials
   1. The Comapany may, at its sole discretion, sell to Merchants through our Websites or by other means certain hardware which may include tablets, beacons, smartphones, wearable devices and any type of RFID/HiD readers, and certain materials which may include gift cards, wristbands, plastic cards and/or related printed materials, in each case for use in connection with the Services (“Hardware and Materials”).
   2. If you order or otherwise receive any Hardware and Materials from us, title in all such Hardware and Materials will remain with us until all charges in relation to same are paid to us in full and you shall have no right, title or interest in or to the Hardware and Materials until you have paid for them in full (save for the right to possession and use of same subject to these Terms).
   3. All risks including risk of loss, theft, damage or destruction of the Hardware and Materials shall pass to you on delivery of same to your Premises (or such other location as we may agree in writing) and shall remain at your sole risk whilst in your possession, custody or control.
   4. Until title to the Hardware and Materials passes to you pursuant to Clause 8.2 and while we continue to provide you the Services, you shall:
      1. ensure that the Hardware and Materials are kept and used in a suitable environment, used only for the purposes for which they are designed, and operated in a proper manner by trained competent staff and in accordance with any manufacturer’s and/or supplier’s instructions and/or any instructions provided or made available by us from time to time;
      2. maintain at your own cost and expense the Hardware and Materials (where applicable) in good and substantial repair in order to keep them in a good operating condition (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Hardware and Materials; and
      3. where you fail to pay for any Hardware and Materials in full when due in accordance with these Terms, deliver up the Hardware and Materials on demand at such address as we may require, and/or if we determine necessary you shall allow or procure The Company and/or its representatives access to the Premises or any premises where the Hardware and Materials are located for the purpose of removing the Hardware and Materials and for this purpose you grant us and our representatives a licence or shall procure all necessary licences to enable us to exercise our rights under this clause.
9. Verification
   1. The Company may, for the purposes of verification, request additional information and/or documentation including government issued identification (e.g. passport, driver’s licence etc.) or, in the case of incorporated entities, a certificate of incorporation or any related constitutional documentation. Where you fail to provide any information requested under this Clause 9.1, we may terminate the provision of the Services to you.
10. Merchant obligations
    1. Online Ordering: If you use Online Ordering you are solely responsible for all aspects of your order and fulfilment process including the goods and services you offer and sell; information supplied to consumers (including Members) relating to your goods and services (including descriptions, pricing and allergens); representations and images of the goods and services you offer and sell (including ensuring you have the necessary rights to display images and Content and to sell the goods and services); availability, management and synchronisation of inventory; acceptance and rejection of orders; charges payable by Members and refunds payable to Members; and your own terms and conditions of sale and their and your compliance with Applicable Law. We are not responsible for your online order, inventory and fulfilment process and shall have no liability for lost sales, income, profits or business opportunity and/or your compliance with Applicable Law or the terms of your contracts with Members.
    2. Campaigns and Loyalty Programs: The Services enable you to create and manage Campaigns and Loyalty Programs through your Merchant Account. Whether you use or skip the provided wizard to create your Campaign or Loyalty Program, you are solely responsible for all aspects of your Campaign and Loyalty Program including the parameters for and honouring the terms of your Campaign and/or Loyalty Program and providing Rewards, and for ensuring that the Campaign and/or the Loyalty Program is operated in accordance with Applicable Law. While we do collect, store, analyse and use Analytical Data as described in clause 11.1, we do not monitor your Campaign or your Loyalty Program and we are not responsible for the operation of your Campaign or your Loyalty Program. You are also solely responsible for promoting your use of the Services including your Campaigns and Loyalty Programs.
    3. Premises: The Services enable you to provide information regarding the location of your Premises, your hours of business and the days on which you are closed for business (e.g. bank and public holidays). You are solely responsible for ensuring this information is current and correct. We do not check this for you and so we are not responsible for any consequences of you not keeping this information current and correct.
    4. Inventory Management: If you use Inventory Management it is your sole responsibility to link your inventory of goods with your Merchant Account and to ensure your inventory is current, correct and regularly synchronised with your Merchant Account. We have no way of verifying your inventory and are not responsible for the consequences of you failing to do this, including for lost sales, income, profits or business opportunity and/or your compliance with Applicable Law or the terms of your contracts with Members.
    5. Member Payments: It is your responsibility to encourage Members to load funds to your business. The Services enable you to monitor Member payments made to you. We do not receive or hold Member payments for or on your behalf and we have no access or control over the payments made or attempted to be made by Members to you. You and/or your chosen payments provider are solely responsible for the receipt, processing, charge-backs and refunds of payments made by Members to you.
11. Analytical Data and other data
    1. We will use information on the use and performance of the Services [including your use of the Services and your Transactions with Members] to generate [anonymised and aggregated] statistical and analytical data (“Analytical Data”) and use Analytical Data for our internal research, business and product development purposes and to conduct statistical analysis and identify trends and insights. [If and to the extent the activities described in this clause involves the processing of personal data, we will process such personal data in accordance with applicable data protection law.] All right, title and interest in and to all Intellectual Property Rights embodied in Analytical Data vest in and shall at all times automatically vest in and shall be the absolute property of The Company. [We shall retain such Analytical Data after the termination of your subscription for the Services. As Analytical Data relates to all Merchants and Members we will share Analytical Data with other Merchants].
    2. For the duration of your subscription for the Services and provided you comply in full with these Terms we grant you a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to view and download such Analytical Data as we may in our sole discretion make available to you for viewing and downloading in your Merchant Account from time-to-time for your own business purposes. Please see clause 21.1.3 in respect of your rights to access Analytical Data on termination of your subscription for the Services.
    3. [Your use of the Services may allow you to collect personal data relating to Members with whom you interact through the Services which may include a Member’s name, date of birth, gender, email address, telephone number, delivery address, transaction information, details of purchases and amounts spent (“Member Personal Data”). You represent, warrant and undertake that you shall at all times comply with Applicable Law in respect of your control and processing of Member Personal Data.] [Where we act as a processor on your behalf of Member Personal Data we process Member Personal Data in order to provide the Services to you and in accordance with the data processing terms available here.
    4. [The Comapny is a controller of certain personal data provided to us by Members through a Member Account.  We are also a controller of certain personal data relating to your use of the Services. Please see our [Privacy Notice].
12. Fees
    1. The Company operates subscription and transaction fee-based services. This means that Fees will be billed in arrears on a recurring and periodic basis (each a “billing cycle”) for your subscription and for Transactions identified in the subscription solution selected by you. Your subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your Merchant Account. The subscription selected by you may include Additional Services, or you may choose to procure Additional Services or other services from us in addition to your subscription. The Company reserves the right in the future to charge separate and additional fees for usage of some of our more advanced features.
    2. As compensation for the provision of the Services, you agree to pay the Fees in accordance with these Terms and the pricing and payment terms presented to you for the Services, unless otherwise agreed in writing by The Company. Where you start to use any Additional Services, revised Fees may immediately apply and you agree to pay those Fees in accordance with these Terms. If the pricing and payment terms presented to you for any Additional Services are specified as involving a ‘one-off’ payment, you agree to pay that ‘one-off’ payment as part of the Fees in your next billing cycle. We reserve the right to require from you payment in advance of Fees for Additional Services.
    3. The Fees and the charges for any Hardware and Materials are exclusive of amounts in respect of VAT (if applicable). You shall, on receipt of a valid VAT invoice from us, pay to The Company such additional amounts in respect of VAT as are chargeable on a supply of the Services and/or any Hardware and Materials.
    4. Fees are payable on the Payment Date. You must have a valid payment card or bank account associated with your Merchant Account from which we may collect our Fees on the Payment Date. You represent and warrant that you have the right to use the payment card or bank account you associate with your Merchant Account and you will promptly update your payment card details or bank account as necessary to ensure we can collect the Fees on the Payment Date. If we are unable to collect Fees through the payment card selected by you (for example, because your payment card has expired) or through the bank account details you have provided, you must ensure that we are paid in full for all outstanding Fees within thirty (30) days of the Payment Date otherwise we may suspend your access to the Services until we are paid in full. The Company reserves the right to suspend your Merchant Account in the event of non-payment of Fees.
    5. In the event of any late payment or default of payment of Fees and/or the charges for any Hardware and Materials or other sums due to us, we may, without limiting our other rights and remedies under these Terms and/or under Applicable Law, require you to pay interest on any amount outstanding calculated on a daily basis and compounded monthly from the due date until actual payment in full whether before or after judgment at the rate of 8% per annum.
    6. We reserve the right to change our Fees from time to time provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your subscription. We will provide thirty (30) days’ prior notice [by email to the email associated with your Merchant Account] of any change to the Fees for any Services you have subscribed for. If you do not agree to the change in Fees, you must close your Merchant Account in accordance with these Terms on expiry of your then current subscription. [If you pay Fees via a POS and if you do not disagree with our notified change in Fees, we will (i) collect the new amount of Fees from your payment method on your next billing cycle; and (ii) deduct from the new amount of Fees payable by you [on each billing cycle] such sum as we in our sole discretion determine as representing the transaction costs that you paid to your POS provider during for your billing cycle(s)].
    7. If we grant you a Trial Service we will not charge you Fees for your selected subscription plan until after your Trial Service (if granted) has expired. Unless you cancel your subscription by sending an email to us at support@loylap.com before the expiry of your Trial Service you authorise us to immediately charge the Fees based on the subscription plan you selected to your chosen payment method and thereafter on each billing cycle. Only one Trial Service is permitted per Merchant Account. If you change the subscription plan associated with your Merchant Account you will not receive another Trial Service for that Merchant Account. Any Hardware and Materials and/or Additional Services requested during the Trial Service must be paid to us in full in advance, unless we otherwise agree in writing. We reserve the right to vary or limit the duration of Trial Services, include additional conditions and cease to provide a Trial Service at our sole discretion.
13. Licence
    1. Subject to your compliance with these Terms, The Company grants you a non-exclusive, non-transferable, non-sublicensable and revocable license (during the term of your subscription for the Services) to: (i) install our Merchant App solely on Compatible Mobile Devices and/or POS owned or controlled by you; and (ii) to access and use the Services for which you have subscribed on such Compatible Mobile Devices and/or POS for your own business purposes. For the avoidance of doubt, this license is provided by us and not any POS companies integrated with The Company or its agents, subcontractors, representatives or employees.
    2. You will not acquire any right, title or interest in or to our Merchant App or the Services, except for the limited license rights expressly granted to you under these Terms. All other rights, title and interests in and to the Merchant App and the Services are expressly reserved by The Company and/or its licensors. Without limiting the generality of the foregoing, you will not and you will not permit any other person to: (i) copy any of our Websites, our Merchant Apps and/or the Services except where such copying is incidental to normal use or where it is necessary for the purpose of back-up or operational security; (ii) make alterations to, or modifications of, the whole or any part of our Websites, our Merchant Apps and/or the Services, or permit our Websites, our Merchant Apps and/or the Services or any part of them to be combined with, or become incorporated in, any other programs; (iii) use, modify, adapt or reformat our Websites, our Merchant Apps and/or the Services or any portion thereof, except as expressly permitted under these Terms; (iv) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify any of our Website, our Merchant Apps and/or the Services; (v) market, share, distribute, offer for sale or sell copies of the our Websites, our Merchant Apps and/or the Services in any way contrary or inconsistent with the rights granted and restrictions under these Terms; (vi) [use or access our Websites, the Merchant Apps and/or the Services for any other benchmarking or competitive purposes; ](vii) conceal, change or remove any markings relating to the Intellectual Property Rights associated with our Websites, our Merchant Apps and/or the Services including copyright (©), registered trade mark (®) or unregistered trademark (™) markings; (viii) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of our Websites, our Merchant Apps and/or the Services or attempt to do any such thing except to the extent that such actions cannot be prohibited by Applicable Law; (ix) interfere with, bypass, or disable any features or functionality that is embedded in or included with our Websites, our Merchant Apps and/or the Services; (x) infringe our Intellectual Property Rights or those of any third party in relation to your access and/or use of our Websites, our Merchant Apps and/or the Services; and/or (xii) use our Websites, our Merchant Apps and/or the Services in any unlawful manner or for any unlawful purpose or in any manner inconsistent with these Terms.
    3. The Company may, in its sole discretion, release subsequent releases or versions of our Merchant Apps. In order to continue using the Services, you must obtain the then current release or version.
    4. You agree not to use or launch any automated system, including robots, spiders, offline readers etc., which accesses our Websites, our Merchant Apps and/or the Services in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional online web browser. You agree not to collect, mine or reproduce any personal data, including account names, from our Websites, our Merchant Apps and/or the Services nor to use the communication systems provided by the Services for any commercial solicitation purposes [save where permitted as a component of the Services]. You agree not to use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages.
    5. You agree not to (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running our Websites, our Merchant Apps and/or the Services; (ii) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) upload invalid data, viruses, worms, or other software agents through our Websites, our Merchant Apps and/or the Services; (iv) impersonate another person/business or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your business identity; (v) interfere with the proper working of our Websites, our Merchant Apps and/or the Services; or (vi) bypass the measures we may use to prevent or restrict access to the Services, including by registering for the Services with a non-enterprise or non-work-related email address.
14. Refund Policy
    1. Fees paid are non-refundable, except as provided in these Terms or when required by Applicable Law.
    2. The Company will not issue refunds for any Hardware and Materials or for any Additional Services. For the avoidance of doubt, we do not refund any Fees (and such Fees will at all times remain payable) in respect of our provision to you of a white-label application as an Additional Service.
15. Dispute Resolution
    1. Any dispute or difference arising out of or in connection with these Terms will be referred in the first instance to a Customer Service Manager and your Managing Director respectively, who will use their reasonable endeavours to resolve the dispute. If the dispute has not been resolved within [90] Business Days (or such longer period as may be agreed in writing by the parties) of being referred to the nominated representatives, the dispute will be referred to and finally resolved by arbitration under the provisions of the Arbitration Act 2010, by a tribunal comprising one arbitrator which, in default of the parties’ agreement as to the arbitrator is to be appointed by the Law Society of Ireland.
       1. The seat of the arbitration shall be Dublin, Ireland. The law governing the arbitration shall be Irish law. The language of the arbitration shall be English.
       2. The costs of any arbitration and the fees of the arbitrator shall be advanced in the first instance by the parties in equal shares. The arbitrator may award to the prevailing party in any arbitration the prevailing party’s fees and other costs in any such arbitration.
       3. The award of the arbitrator shall be final and binding on the parties and may be enforced in any court of competent jurisdiction.
16. Dormant Merchant Accounts
    1. If there is no activity on your Merchant Account (including access or any Transactions) for at least twenty-four (24) months consecutively, we reserve the right to terminate your Merchant Account. Termination will result in the deletion of Members’ personal data and is not retrievable.
    2. The privacy of our Members and Merchants is of paramount importance to us. You confirm that you have read and understood our Privacy Notice.
17. Transactions
    1. Transactions may include functionality for you and Members to enter into agreements whereby Members prepay for your goods and/or services. Where you avail of any Transaction where a Member prepays a sum to you, you must hold any prepaid sum on trust for the Member and agree not to mix such monies with the operational cash of the business. You must realise each purchase individually and realise all relevant taxes on an individual basis. The Company accepts no responsibility whatsoever for monies prepaid by Members to you.
    2. For the avoidance of doubt, any Transaction where a Member prepays a sum to you represents an agreement between you and the Member. Accordingly, The Company accepts no responsibility or liability in any disputes arising out of such Transactions including in respect of:
       1. failure by you to satisfy full amounts advanced by the Member;
       2. you entering liquidation, examinership, administration, receivership, bankruptcy or any other insolvency proceedings, your suspension or threatened suspension of payment of debts or inability to pay debts as they fall due or your admission of inability to pay debts; your cessation, for any reason, to be able to carry on business or you being prevented from carrying on such business; or
       3. any other issue which does not relate to the functionality of the Services.
18. General Liability
    1. You represent and warrant that:
       1. you alone are the seller of the goods and/or services you supply through the Services;
       2. your use of the Services will not create any liability on the part of The Company in respect of the supply of goods or services by you and you will remain fully and directly responsible and liable in relation to such supply;
       3. you are solely responsible for providing support and related services to a Member and for all issues related to that supply of goods or services, including all issues arising from any Transaction, Loyalty Program, Campaign and/or Rewards; and
       4. you are solely responsible for processing any Transaction and redeeming and honouring Rewards and for providing the products and/or services.
    2. The Company shall not be liable for, and you unconditionally and irrevocably indemnify and shall keep fully and effectively indemnified and hold harmless The Company (and our Affiliates and licensors, and each of our and their respective employees, officers, directors and representatives) in full and on demand from and against all Liabilities (whether direct or indirect and including loss of profit and loss of reputation) suffered or incurred by us arising out of or in connection with any claim as a result of or arising out of your use of our Websites, our Merchant Apps and/or the Services and/or Hardware and Materials including: (i) Liabilities arising out of or in connection with any Loyalty Program, Campaign, Rewards, Transactions or the prepayment of any sums; (ii) any personal injury or property damage (tangible or intangible) related to the foregoing; (iii) any sales, goods and services, use, excise, import, export, property, value added or other taxes or duties assessed or imposed on us or our Affiliates in connection with or as a result of your use of the Services; or (iv) any legal or regulatory violation arising under the laws or regulations of any country (including data protection and privacy laws) related to your use of the Services.
    3. The Services may link you to other websites or otherwise include references to information, materials and/or services provided by other parties. These other websites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such websites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the website or party by us, or any warranty of any kind, either expressed or implied.
    4. While we try to ensure that all information relating to our Websites, our Merchant Apps and/or the Services (including in respect of promotions, prices, Merchants and their products and/or services) is accurate and up-to-date there may be errors and/or omissions in respect of the information displayed on them. We exclude all liability for any such errors and/or omissions and we are at all times entitled to suspend, terminate or amend the part(s) of our Websites, our Merchant Apps and/or the Services affected by such error and/or omission. If we notice an error or omission we will contact you to inform you of the suspension, termination or amendment.
    5. Except as expressly and specifically provided in these Terms:
       1. The Company does not warrant that the use of the Services will be timely, uninterrupted or error free. You acknowledge and agree that the Services are not intended or suitable for use in circumstances or environments where the failure, time delay, interruption or inaccuracies in respect of your use of the Services could lead to death or personal injury or physical, financial or environmental damage, or non-compliance with any health and safety obligations or Applicable Law;
       2. The Company does not warrant that the Services will be free from vulnerabilities or viruses or other similar things or devices;
       3. You assume sole responsibility for results obtained from your use of the Services and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction;
       4. You are solely responsible for ensuring that your marketing activities, product and service fulfilment and all other interactions with Members comply in full with Applicable Law including applicable consumer protection law and data protection and privacy law; and
       5. 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.
    6. Subject to Clause 18.10, to the fullest extent permitted by Applicable Law, we shall not be liable for any direct, indirect or consequential loss or damage, or for any of loss of revenue, actual or anticipated profits, anticipated savings, contracts, use of money, business opportunity, goodwill, reputation and/or loss, damage to or corruption of data (subject to our obligations under applicable data protection law).
    7. Subject to Clause 18.10, The Company’s maximum 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 (including any liability for the acts or omissions of its employees, agents and subcontractors) shall in no circumstances exceed the lesser of: (i) 50% of the total Fees paid by you under these Terms during the six (6) month period immediately preceding the earliest act or omission giving rise to such liability; or (ii) one hundred euro (€100).
    8. We have implemented technical and organisational measures designed to secure your personal data from accidental loss and from unauthorised access, use, alteration or disclosure. Whilst The Company uses secure third-party servers, we cannot guarantee that unauthorised third parties will never be able to access your information. You acknowledge that you provide your personal data at your own risk.
    9. You must take reasonable steps to mitigate any loss or damage, cost or expense you may suffer or incur arising out of anything done or not done by us under or in connection with these Terms.
    10. Nothing in these Terms shall exclude or limit any liability which cannot be excluded or limited under Applicable Law.
19. Duration, Suspension and Termination
    1. These Terms commence and are effective from the date on which you create your Merchant Account and accept these Terms. These Terms shall continue in full force and effect unless and until you cancel your subscription for the Services or the Terms are otherwise terminated, in each case in accordance with these Terms.
    2. Without limiting the foregoing, we reserves the right to terminate these Terms and the provision of the Services on the occurrence of any of the following events:
       1. your failure to pay any amount due under these Terms in full within five (5) Business Days of the Payment Date and to remedy such failure within three (3) Business Days of receipt of written notice to do so;
       2. you commit a breach of any other provision of these Terms and (if such breach is remediable) you fail to remedy that breach within a period of [30 (thirty) days] after being notified to do so;
       3. Merchant’s passing of a resolution for its winding up or the making by a Court of competent jurisdiction of an order for its winding up or the dissolution of Merchant; the appointment of a liquidator; the making of an examination order or the appointment of an administrator or receiver over, or the taking possession or sale by an encumbrancer of, any of Merchant’s assets; making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; suspension, or threatened suspension, of payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; cessation, for any reason, to be able to carry on business or is prevented from carrying on such business; and/or in respect of any of the foregoing, Merchant suffers any step or action in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
       4. [you breach any policies and terms of or create liability for any POS system provider integrated with our Services;]
       5. The Company reasonably believes that continued use by you and/or any Member of the Services violates, or is reasonably likely to violate, Applicable Law, any Intellectual Property Rights of any person and/or the contractual rights of any other person; or
       6. Applicable Law or court order materially impairs The Company’s ability to exercise its rights or perform its obligations hereunder, and such impairment cannot be cured within a reasonable period of time (as The Company may determine in its reasonable discretion).
    3. [Without limiting or affecting any other right or remedy available to us, including our right to terminate these Terms and our provision of the Services, we may restrict or suspend your access to the Services, without liability, if we consider that you have:
       1. [failed to fulfil any order of goods made by a Member through Online Ordering;]
       2. [supplied misdescribed goods to a Member through Online Ordering;]
       3. [not honoured [Service credit] in breach of Applicable Law];
       4. [operated a Loyalty Program and/or a Campaign in breach of Applicable Law];
       5. [not honoured any validly redeemed Rewards];
       6. [used in the creation of any gift cards through the Services any Intellectual Property Rights in respect of which you do not own and you are not authorised to use];
       7. [provided inaccurate and have not corrected the business opening times in your Merchant Account];
       8. [failed to pay us amounts due under these Terms, in accordance with these Terms];
       9. [not maintained a valid payment method for the Fees on your Member Account].
    4. [We will notify you by email if we intend to restrict or suspend your access to the Services pursuant to Clause 19.3, together with information on what steps you must take to avoid such restriction or suspension. Without prejudice to Fees accrued prior to such restriction or suspension of access to the Services, we will suspend the collection of Fees during any period of restriction or suspension. If we end the restriction or suspension of your access to the Services we shall collect all Fees that would have accrued during the period of restriction or suspension on your next Payment Date, together with all other Fees then due.]
20. Termination by Merchant
    1. You can, at any time, request to cancel your subscription to the Services. We would be disappointed to see you go, but we realise that sometimes circumstances call for these things. You can terminate these Terms and cancel your subscription by providing us thirty (30) days’ written notice by email to support@loylap.com. All outstanding Fees and other outstanding sums must be paid to us in full before your subscription can be terminated and your Merchant Account can be closed. The closing of your Merchant Account may take up to eight (8) weeks to process, as we may contact Members about the imminent cessation of your participation in the Services.
    2. Notwithstanding termination of these Terms (for any reason), you shall remain liable to any Members in respect of any cash balances, Loyalty Program, Campaigns, Rewards and/or any obligations in respect of any Transactions outstanding on the date of termination.
21. Consequences of termination
    1. On termination of these Terms:
       1. all Fees and other sums due to The Company shall be immediately paid in full by you;
       2. all rights and licenses granted by The Company to you under these Terms shall automatically terminate;
       3. you will no longer be able or permitted to view or access any Analytical Data. We therefore recommend you [download any Analytical Data you wish to retain before these Terms and your access to the Services are terminated]. We reserve the right to retain Analytical Data after termination of these Terms; and
       4. any information you provide or generate in connection with your use of the Services will no longer be accessible to you. We therefore recommend you download any information you wish to retain before these Terms and your access to the Services are terminated.
    2. The termination of these Terms shall not affect those provisions as are expressed to operate or have effect after termination and is without prejudice to any accrued rights or obligations or any rights or obligations which are intended to commence on or survive termination of these Terms. Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination of these Terms shall remain in full force and effect.
22. Force Majeure
    1. Force Majeure Event means any circumstance or sequence of circumstances not within a party’s reasonable control including without limitation: any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet; acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; interruption or failure of utility service; any labour or trade dispute, strikes, industrial action or lockouts.
    2. If we are prevented, hindered or delayed in or from performing any of our obligations under these Terms due to a Force Majeure Event, The Company shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
    3. Without prejudice to the other provisions of these Terms, The Company shall not be liable to you for a failure or delay to perform any obligation under these Terms which has become prohibited, impossible or uncommercial to perform by reason of a change in Applicable Law.
23. General Provisions
    1. Notices: [Any notice required to be given under these Terms or in connection with the matters contemplated by these Terms, shall (except where specifically provided otherwise) be in writing and personally delivered, sent by post or by email. Such notice shall be deemed to have been given on delivery at the relevant address or, if sent by post, [3] Business Days after the date of posting, or if sent by email, when sent. This clause does not apply to the service of any proceedings or other documents in any legal action.]
    2. Assignment: You will not and will not purport to, without the prior written consent of The Company, assign, transfer, charge or deal in any other manner with any of your rights or obligations under these Terms. We may assign, transfer, novate, charge, hold on trust, sublicense or otherwise deal in or dispose of, in whole or in part, any of its rights and/or obligations under these Terms without notice and you undertake to promptly execute and deliver any documents or instruments required by us for such purpose.
    3. No partnership or agency: These Terms shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the contracting parties other than the contractual relationship expressly provided for herein. Each contracting party confirms it is acting on its own behalf and not for the benefit of any other person.
    4. Waiver: No failure or delay by us to exercise any right or remedy provided under these Terms or by Applicable Law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    5. Rights and remedies: The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.
    6. Variation: No variation of these Terms shall be effective unless it is in writing and signed by The Company.
    7. Severability: If any provision of these Terms (or part thereof) is prohibited by Applicable Law or judged by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision (or part thereof) shall not affect the other provisions of these Terms and the enforceability of the remainder of these Terms shall not be affected.
    8. Entire agreement: These Terms [and any documents referred to herein] constitute the entire agreement between The Company and you, the Merchant, relating to its subject matter and supersedes and extinguishes all previous terms, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Company and the Merchant agree that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) relating to the subject matter of these Terms that is not set out in these Terms. Each of The Company and the Merchant agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
    9. Choice of law: These Terms shall be governed by and construed in accordance with the laws of Ireland. Nothing in these Terms, including Clause 15.1, shall operate to prevent us from seeking interim, protective or provisional relief in the courts of any state.
24. Defined terms
    1. “Additional Services” means professional services provided by us to you pursuant to these Terms including the creation of a white label application, digital payment set-up [and training] related to the Services (and includes, as the context admits or requires any one, more or all of them or part of any of them).
    2. “Affiliate” means any entity Controlled by, Controlling or under common Control with a party to these Terms.
    3. “Applicable Law” means all laws, legislation, regulations, industry recognised codes of practice, or requirements of any relevant government or governmental agency applicable to a party to these Terms.
    4. “Business Day” means a day other than a Saturday, Sunday or public or bank holiday in the Republic of Ireland.
    5. “Campaign” means [a marketing campaign created and managed by the Merchant through the Services involving the provision of Rewards to Members through the Services].
    6. “Compatible Mobile Device” means [a mobile phone, tablet, computer or other supported device that is capable of downloading and operating the Merchant Apps and that complies with Clause 7 of these Terms].
    7. “Content” means any content, including a Business Name, Business Logo and/or any images, photographs, videos, hyperlinks and text (including opinions and statements).
    8. “Control” means in relation to a party to these Terms, direct or indirect beneficial ownership of more than 50% of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that party, as the case may be, and Controlled and Controlling shall be construed accordingly.
    9. “Fees” means as applicable the subscription fees for the Services, Transaction charges, fees associated with Additional Services and professional fees and costs payable by you to The Company under these Terms [and as described on our Websites or such other source as we may include or refer to in these Terms from time to time.]
    10. “Hardware and Materials” has the meaning given in clause 8.1.
    11. “Intellectual Property Rights” means all and any patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, rights in any source code, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
    12. [“Inventory Management” means the feature of the Services that enables a Merchant to record its stock and inventory of goods and to synchronise this stock and inventory with its Merchant Account].
    13. “Liabilities” include all costs, claims, demands, damages, expenses, compensation, charges, settlements, penalties, losses, fines, awards and liabilities (including reasonable legal and professional fees and costs, together with VAT) whatever.
    14. “Consumer App” means the mobile application intended for use by Members in conjunction with a Member Account.
    15. “Member Account” means a Member’s account with The Service that is used to engage in Transactions and other services made available through the Consumer App.
    16. “Merchant Account” means a Merchant’s account with The Company that is used for processing Transactions applicable to that Merchant and managing Merchant’s subscription for the Services.
    17. “Merchant App” means a mobile application made available by The Company for download from various application channels for use by Merchants to create and manage a Merchant Account and through which Merchants may receive the Services.
    18. “Loyalty Program” means [a loyalty programme created and managed by the Merchant through the Services involving the provision of Rewards to Members through the Services].
    19. “Merchant” means a person acting in a commercial capacity who subscribes for, offers goods and/or services to Members and enters into Transactions through the Services.
    20. “Member” means a [consumer with a Member Account or who otherwise enters into Transactions as a guest without a Member Account].
    21. “Online Ordering” means [the feature of the Services that enables a Member to place an online order for your goods and/or services, schedule its collection or delivery and pay for same in each case through use of the Services].
    22. “Payment Date” means the monthly anniversary of the day on which your Services subscription was activated, and where such day does not fall on a Business Day, the Payment Date will be the next occurring Business Day.
    23. “POS” means a point of sale system compatible with the Services.
    24. “Premises” means the buildings or other premises (including mobile premises) used by you for the purposes of supplying goods and/or services to consumers, including to Members.
    25. “Prohibited Activity” has the meaning ascribed to it in Clause 5.4.
    26. “Prohibited Material” means any Content which is defamatory, offensive, abusive, unlawful or illegal.
    27. “Rewards” means [any cash back, price reduction, loyalty stamps or any complementary goods and/or services provided by a Merchant to Members under a Loyalty Program and/or a Campaign].
    28. “Services” means [access to our Merchant Apps, the subscription services subscribed and provided by The Company under these Terms including any Additional Services, and includes, as the context admits or requires any one, more or all of them or part of any of them.]
    29. “Terms” means these Merchant Terms of Use.
    30. “Transaction” means any interaction carried out by a Member and/or you pursuant to your subscription for the Services.
    31. “Trial Service” [means access to the Services for a period of thirty (30) days from the date you agree to these Terms, or such other period as The Company may in its sole discretion determine, during which you may evaluate the Services for your own business purposes without charge.]