LOYALTY APP TERMS & CONDITIONS OF USE
In these Terms:
1.1 App means the Loyalty App mobile device application.
1.2 Business Day means a day on which banking institutions generally are open in Perth, Western Australia during Business Hours but excluding Saturdays, Sundays and public holidays.
1.3 Claim means any claim, liability, action, demand, loss, damage, cost, charge or expense of any kind whatever, including without limitation legal costs on a solicitor client basis.
1.4 e-Gift Cards means the face value vouchers referred to in these Terms, where the stated face value is equal to the specified number of Points.
1.5 GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.6 Loyalty App Platform means the platform managed by us that you may access using the App and the Website and by which you may earn, purchase, transfer and redeem e-Gift Cards in transactions with us, Merchants or other Users.
1.7 Merchant means an owner or operator of a business that has agreed with us to offer e-Gift Cards to you for goods and/or services through transactions in-store or online using the Loyalty App Platform.
1.8 Party means us or you and Parties means us and you together.
1.9 Percentage Value means the percentage value of the price at the date of the transaction for the good or service purchased by you from a Merchant, which may vary but which will not be less than 1%.
1.10 Personal Information has the meaning given in section 6 of the Privacy Act 1988.
1.11 Points means points that can be earned, claimed or redeemed through the Loyalty App Platform, in the form of an e-Gift Card, by you when goods and/or services are acquired from Merchants, or which can be applied in payment (in whole or in part) for goods and/or services from Merchants, shared between Users and purchased from us, in the form of an e-Gift Card.
1.12 Related Bodies Corporate and Related Entity have the meaning given in section 9 of the Corporations Act 2001.
1.13 Retail Premises means a retail premises from which a Merchant operates its business that you can attend from time to time to acquire goods and/or services offered for sale by that Merchant.
1.14 Terms means these terms and conditions as amended from time to time.
1.15 User means you or any person who has established an account with us for the use of the App and the Loyalty App Platform.
1.16 User Content means all content that is generated, posted or shared by you on the Loyalty App Platform including, but not limited to, reviews, opinions, advice, ratings, discussions, comments, messages, survey responses and other communications, as well as files, images, photographs, videos, sound recording, musical works and any other content or material.
1.17 We, our or us means Loyalty App Pty Ltd.
1.18 Website means www.loyaltyapp.com.au.
1.19 You or your means you.
2. About the Loyalty App Platform
2.1 The Loyalty App Platform enables Merchants to offer and promote e-Gift Cards to you, promote and sell their goods and/or services to you using e-Gift Cards and interact with you. You can also purchase e-Gift Cards.
2.2 e-Gift Cards can be used by you for purchases from any participating Merchant.
2.3 Merchants are the sellers of the goods and/or services. They are solely responsible to you for the care, quality and delivery of any goods, services or benefits that you are entitled to.
2.4 You will be liable for all of your obligations, including an obligation to pay, arising from entering into any agreement with a Merchant and from any electronic transactions using or in relation to the Loyalty App Platform.
2.5 By purchasing goods and/or services from a Merchant or entering into a transaction with a Merchant, you agree to that Merchant’s terms and conditions, which may change from time to time, and that those terms and conditions are separate from and additional to the conditions that apply under these Terms. We encourage you to review those terms and conditions carefully.
3. What this document is about
3.1 This document records the Terms which govern your use of the Loyalty App Platform.
3.3 We may change and add to clauses 1 to 14 of these Terms at any time and without notice to you. You should review the Terms as they appear on the Website from time to time (Terms & Conditions of Use – Users). If you continue to use the Loyalty App Platform after a change is made to the Terms, you are deemed to have accepted the Terms as amended.
3.4 By using the Loyalty App Platform and accepting these Terms:
(a) we grant you a personal, limited, revocable, non-exclusive and non-transferable license to download, install, access, view and use the Loyalty App Platform, App and the Website, and its content, solely for your own personal, non-commercial purposes and only for those purposes; and
(b) you agree not to reproduce, distribute, create derivative works from, display publically, license, sell or re-sell any content, software, goods and/or services obtained from or through the Loyalty App Platform without our prior, written express permission.
4. Your use of the Loyalty App Platform
4.1 In order to access or make use of the Loyalty App Platform you must:
(a) download or install the App on your mobile device;
(b) at your own cost and expense, ensure that your mobile device and its software are compatible with the App; and
(c) create an account with us.
4.2 To register for the Loyalty App Platform you must provide us with your name and email address. You will be required to provide your account details to us and register a valid credit or debit card with us if you wish to make purchases from a Merchant or enter into transactions with us other than by using e-Gift Cards that you have either accrued on previous cash purchases, had transferred to you from another User or earned pursuant to subclause 4.18(b).
4.3 You agree to:
(a) provide true, accurate, current and complete information about yourself; and
(b) maintain and update the information promptly to keep it true, accurate, current and complete.
4.4 You acknowledge and agree that:
(a) you possess the authority to create a binding legal obligation;
(b) you are responsible for maintaining the confidentiality of the account and are fully responsible for the activities that occur on or under your account;
(c) you will not allow anyone else to use your account;
(d) you will notify us immediately of any unauthorised use of your account or any breach of security on your account of which you become aware;
(e) we are entitled to assume that any person using your account to access the Loyalty App Platform is either you or is authorised by you to do so;
(f) the use of your account by you is for your personal, non-commercial use; and
(g) in providing you with access to the Loyalty App Platform under or in connection with these Terms we may do so with the assistance of our Related Bodies Corporate and Related Entities.
4.5 You warrant and represent that you are over 18 years old. If you are younger than 18 years old and you wish to use the Loyalty App Platform you must first obtain the consent of your parent or guardian and he/she must agree to be bound by the Terms.
4.6 Your account is non-transferable. You cannot sell, combine or otherwise share it with any other person.
Use of the Loyalty App Platform
4.7 By using the Loyalty App Platform you may:
(a) enter into agreements with us and with Merchants;
(b) transact electronically with us and with Merchants; and
(c) engage socially and commercially with Merchants and with other Users through your personal page on the Loyalty App Platform.
4.8 You acknowledge and agree that you will not:
(a) violate any laws, including but not limited to intellectual property, privacy and defamation laws;
(b) impersonate any person;
(c) post any material or content, including any User Content, to the Loyalty App Platform that:
(i) infringes the intellectual property rights of any third party;
(ii) you do not have the right to post;
(iii) is purposively inaccurate, fraudulent or false;
(iv) is unlawful, harmful, threatening, abusive, misleading, invasive of another person’s privacy, harassing, defamatory, obscene or otherwise objectionable to any other person or entity; or
(v) contains any unsanctioned advertising, promotional materials or any other forms of unsanctioned solicitation, including without limitation junk mail, spam, chain letters or any unsolicited mass distribution of email;
(d) distribute viruses, malware, spyware, corrupted files or any similar software or programs that may damage the operation of any computer hardware or software , including by way of imposing any unreasonable or disproportionately large loads on our infrastructure;
(e) collect or store personal data, including Personal Information, of other Users;
(f) engage in any other conduct that inhibits any person from using or enjoying the Loyalty App Platform;
(g) conduct any systemic or automated data collection activities, including without limitation scraping, data mining, data extraction and data harvesting, on or in relation to the Loyalty App Platform; and
(h) use any device, software or routine intended to damage or interfere with the proper working of the Loyalty App Platform or to surreptitiously intercept or sequester any system, data, images or other multimedia elements or Personal Information from the Loyalty App Platform and you may not take any action which.
4.9 You acknowledge and agree that you will not be able to access and use certain functionalities of the Loyalty App Platform unless you have internet access through a GPRS, 3G or Wi-Fi connected mobile device or computer. All traffic charges or access charges incurred due to the use of the Loyalty App Platform are your responsibility and are subject to and regulated by the agreement you have with your mobile network provider.
4.10 We reserve the right to modify the Loyalty App Platform, or any aspect or feature of the App or Website, without notice to you from time to time. We will not be liable for any modification or price change of the Loyalty App Platform or any Claim arising from any of these things.
Payments via the Loyalty App Platform
4.11 Subject to these Terms, e-Gift Cards are issued to you by us and may be redeemed with Merchants. Merchants may offer you e-Gift Cards.
4.12 Purchases through the Loyalty App Platform are made by using your mobile device to scan a QR code, which has been generated by the Merchant. When making purchases from a Merchant, you may:
(a) pay over the counter using cash or a credit or debit card; or
(b) pay with your e-Gift Cards, if you have sufficient value on the e-Gift Cards in your account.
4.14 You will be charged for any fees payable by you at the time of the transaction. You must pay any and all fees, charges and other amounts payable by you under or in connection with these Terms and your use of the Loyalty App Platform, plus any GST on the same. You must not for any reason whatever withhold or suspend payment of any amounts payable under or in connection with the Loyalty App Platform.
4.15 By registering an account and/or credit or debit card with us, you authorise us to charge your account or card as necessary to complete any payments or transactions undertaken using the Loyalty App Platform, including without limitation where the price of a good or service purchased by you from a Merchant with e-Gift Cards exceeds the total balance of Points in your account.
4.16 We will not be liable for any loss or damage you incur arising from your use of the payment method unless caused by our fraudulent conduct, whether by act, error, omission or misrepresentation.
4.17 e-Gift Cards may be:
(a) provided to you pursuant to clauses 4.18 and 4.19;
(b) shared with other Users by transferring the e-Gift Cards from your account to the other User’s account;
(c) purchased at any time by you. These e-Gift Cards will appear in your account and the value of the e-Gift Cards will be charged to your credit or debit card. Points may not be purchased using American Express or Diners Club credit or charge cards. There is no distinction between the e-Gift Cards purchased and e-Gift Cards earned. The daily limit for the purchase of e-Gift Cards is $6,000 per account per day. These transactions will be regulated by and subject to the agreement you have with your financial institution. You will be responsible for payment of any fees charged by your financial institution; and
(d) used in connection with future transactions with any participating Merchant.
4.18 In any transaction with a Merchant using the Loyalty App Platform as set out in clause 4.12:
(a) the Merchant must provide:
(i) you with an e-Gift Card credited with the number of Points that could be acquired for the Percentage Value plus any bonus Points earned on that transaction by you pursuant to any applicable special promotions under clause 4.19; and
(ii) us with the number of Points that, as at the date of the transaction, could be acquired for 1% of the price plus GST for the good or service purchased from the Merchant, even if the transaction involves bonus Points for you pursuant to clause 4.19; and
(b) at the time of purchasing goods or services from a Merchant at a Retail Premises operated by the Merchant, you (the referring User) may, through the Loyalty App Platform, refer another User (the nominated User) to receive an e-gift card to the value of 1% of the price at the date of the transaction of the good or service that you purchased and, in that case, the Merchant must provide the nominated User with that e-Gift Card but, in respect of any future purchases from the Merchant by the nominated User, the Merchant is not required to provide an e-gift card pursuant to this clause to you or to anyone who had referred that User to the Merchant.
4.19 Subject to its discretion, Merchants may provide you with bonus Points (in addition to the Percentage Value), in the form of additional value to the e-Gift Card, under special promotions from time to time.
4.20 e-Gift Cards you have earned will be credited to your account at the time of the transaction. If you use your e-Gift Cards in a transaction, those e-Gift Cards used will be debited from your account at the time of the transaction.
4.21 We may adjust the balance of your account if e-Gift Cards have been wrongly or invalidly credited to it, even if it would put your account balance into negative.
4.22 Unless an e-Gift Card issued to you states otherwise, and subject to clause 4.23, each e-Gift Card does not have a specified expiry date.
4.23 If you do not earn or redeem any e-Gift Cards through your account or do not otherwise use your account for a period of 12 consecutive months, then we can close your account and any e-Gift Cards held in that account will expire automatically in accordance with clause 8.5.
4.24 You cannot sell your e-Gift Cards or redeem your e-Gift Cards with us and/or Merchants for Australian dollars. You may only deal with them in accordance with these Terms.
Third party links and website
4.25 In the remainder of this clause 4, references to third parties includes Merchants.
4.26 Links or portals to third party websites not under our control or operation may appear on the Loyalty App Platform from time to time.
4.27 Any such links are provided by us only as convenience to you and do not imply our endorsement or responsibility for the contents of those linked websites.
4.28 Use of third party content provided via the Loyalty App Platform may be conditional upon agreement to the third party’s terms and conditions.
4.29 You acknowledge and agree that:
(a) we are not responsible for any issues or disputes that arise between you and third parties;
(b) we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of third party content and website;
(c) we are not liable for any Claim arising from or related to your access to or use of any third party website; and
(d) if you decide to access websites maintained by third parties, you do so at your own risk.
5. User Content
5.1 The Loyalty App Platform may provide you with opportunities to submit or post User Content to the Loyalty App Platform through forums, bulletin boards, discussion groups, chat rooms, surveys, blogs, Facebook groups or other communication facilities that may be offered on, through or in connection with the Loyalty App Platform from time to time.
5.2 We do not warrant or guarantee that these facilities will be free from errors, bugs, viruses or other harmful components, and you should take care before deciding whether to upload any User Content. In particular you should be aware that anything you post to the Loyalty App Platform may be downloaded by another person and we may not be able to control the further disclosure and publication of that User Content.
5.3 If you contribute any User Content, you:
(a) must own, or otherwise be permitted to use the User Content when you upload or post it to the Loyalty App Platform;
(b) will not upload or submit any User Content to the Loyalty App Platform that infringes a third party’s intellectual property rights or rights of confidentiality or privacy, or that is or has ever been subject to threatened or actual legal proceedings or other similar complaint;
(c) will pay any royalties, fees or other monies owing to any person as a result of you uploading or posting User Content on the Loyalty App Platform or in licensing or providing that User Content to us;
(d) grant us:
(i) a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your User Content in any existing or future media;
(ii) the right to sub-license these rights; and
(iii) the right to bring an action for infringement of these rights; and
(e) will indemnify us from and against any Claim that we suffer or incur if any of the matters in subclauses 5.3(a) to (d) are not correct or are otherwise breached by you.
5.4 We may, in our discretion, and without any liability to you or any third party:
(a) review, edit, post, refuse to post, remove and monitor the User Content;
(b) cancel or suspend your account;
(c) block your access to the Loyalty App Platform; and
(d) disclose any account details, User Content and the circumstances of its transmission to any third party at any time for any reason.
5.5 Notwithstanding clause 5.4, we do not undertake to monitor or moderate the publication of User Content on the Loyalty App Platform. We accept no responsibility or liability for anything that is posted to the Loyalty App Platform. We do not authorise, condone or endorse any User Content and we are not responsible for such content.
6. Intellectual property rights
6.1 We own, or are the licensed users of, the intellectual property rights arising out of or connected with the Loyalty App Platform, App and the Website, including without limitation all existing and future rights, conferred anywhere in the world by statute, common law or equity, relating to or connected with recorded ideas, techniques, inventions (whether patentable or nor), manner or processes of manufacture, products or other discoveries, including but not limited to business names, trademarks (whether registered or not), semiconductors, circuit layouts, confidential information, rights of secrecy, trade secrets, copyright, domain names, drawings, design (whether registered or not), emblems, formulae, know-how, show-how, concepts, technical information, functional specifications, methodologies, code, research, market analysis, feasibility studies, empirical data, promotional material and information and any application for the registration of any such thing in, arising out of or connected in any way with the Loyalty App Platform.
6.2 You acknowledge and agree that except as expressly provided for in these Terms, you do not acquire anywhere in the world any intellectual property rights of any kind whatever in relation to or in connection with the Loyalty App Platform, App or the Website, irrespective of whether that access or use is authorised by these Terms.
6.3 You will not, and you will not allow or permit your authorised users or any third party to, copy, modify or create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code of or in connection with the Loyalty App Platform, or distribute, upload, post, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Loyalty App Platform. You agree that you will not modify the Loyalty App Platform in any manner or form, or use modified versions of the Loyalty App Platform without our prior written consent. You must only access the Loyalty App Platform through the interface that is provided by us and strictly in accordance with these Terms.
7. Personal Information
8.1 You may cease your use of the Loyalty App Platform at any time and for whatever reason.
8.2 We may terminate, alternatively suspend, limit or cancel your registration and your access to the Loyalty App Platform in our sole and absolute discretion without notice to you:
(a) if we reasonably suspect that you are in breach of these Terms or any applicable law;
(b) if you fail to pay any amount, or part of any amount, that is due and payable to us in connection with your use of the Loyalty App Platform;
(c) if, in our reasonable opinion, your conduct impacts us, our name, our reputation or violates our rights or those of another party;
(d) if you do not use the Loyalty App Platform for a period of 12 consecutive months; or
(e) for any reason whatever.
8.3 We may pursue any and all of our rights and remedies, either in law or in equity, for any Claim occasioned by your breach of these Terms.
8.4 We may discontinue or terminate the Loyalty App Platform in our sole and absolute discretion by giving you not less than 60 days written notice to that effect. Once notice of termination has been given to you, you have 60 days in which to use any e-Gift Cards in your account.
8.5 If your use of the Loyalty App Platform is terminated or cancelled by us pursuant to clause 8.2 or 8.4:
(a) any pending, current or future e-Gift Cards and any other forms of unredeemed value in your account will expire as follows:
(i) automatically upon termination, if we exercise our termination rights pursuant to clause 8.2; and
(ii) automatically at the end of the 60 day notice period, if we exercise our termination rights pursuant to clause 8.4;
(b) we will not give you a refund or credit unless we are required to do so by statute and you will remain liable for all amounts due up to and including the date of termination; and
(c) we will not be liable for the termination, suspension, limitation, cancellation or discontinuation of the Loyalty App Platform or any Claim arising from any of these things.
8.6 If you cease to use the Loyalty App Platform or if your account is otherwise discontinued or cancelled by us, all of your User Content may remain on the Loyalty App Platform.
9.1 The Loyalty App Platform is provided on an “as is” and “as available” basis and, to the maximum extent permitted by law, without any representations or warranties (express or implied) by us, any of our Related Bodies Corporate, Related Entities or any of our or their respective officers, employees, servants, advisers, agents or authorised representatives.
9.2 To the maximum extent permitted by law we, and our Related Bodies Corporate, Related Entities and our and their respective officers, employees, servants, advisers, agents or authorised representatives, do not:
(a) make any representation or warranty:
(i) as to the Loyalty App Platform or the content, including but not limited to User Content, information and materials stored within or otherwise available through your access to or use of the Loyalty App Platform;
(ii) that the Loyalty App Platform will be uninterrupted, secure, accurate, complete, virus-free or error-free or that the servers that operate or host any part of the Loyalty App Platform are free of viruses or other harmful components;
(b) accept any responsibility or liability for any loss (including but not limited to any Claim) arising from:
(i) your failure to comply with these Terms;
(ii) any error, inaccuracy, incompleteness or similar defect in the Loyalty App Platform;
(iii) any default, negligence or lack of care in relation to the preparation or provision of the Loyalty App Platform;
(iv) unauthorised access to or use of your account, the Loyalty App Platform or of our servers;
(v) interruption or cessation of transmission to or from the Loyalty App Platform;
(vi) bugs, viruses or the like which may be transmitted through the Loyalty App Platform;
(vii) errors or omissions in any content made available through the Loyalty App Platform;
(viii) your access and use of the Loyalty App Platform; or
(ix) transactions between you and Merchants; or
(c) warrant, endorse, guarantee or assume responsibility for any good or service advertised, promoted or offered through or in conjunction with the Loyalty App Platform.
9.3 You use the Loyalty App Platform at your own risk. You must evaluate and bear all risks associated with the use of any material or content accessed through the Loyalty App Platform.
10. Liability and indemnity
10.1 You absolutely and unconditionally release and indemnify us, our Related Bodies Corporate, Related Entities and their and our officers, employees, servants, advisers, agents or authorised representatives against all Claims of any kind which are in any way connected with your use of the Loyalty App Platform, including without limitation your transactions or dealings with Merchants, or any breach of these Terms by you, any of your authorised users or any other person for whose acts or omissions you are vicariously liable.
10.2 To the maximum extent permitted by law all terms and warranties express or implied by any legislation, written or unwritten law, equity, trade custom or usage or otherwise in relation to the Loyalty App Platform we provide to you under or in connection with these Terms are expressly excluded, other than those arising out of the Australian Consumer Law. Our liability for breach of any term, condition, warranty or under any remedy implied by law, which cannot be lawfully excluded will be:
(a) reinstating the value of any e-Gift Cards in dispute;
(b) in the case of goods, limited at our option to:
(i) the replacement of the goods or supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the costs of having the goods repaired;
(c) in the case of services, limited at our option to:
(i) the re-supply of the services; or
(ii) the payment of the cost of having the services supplied again by a third party; and
(d) reduced to the extent that any such liability is caused, directly or indirectly, by your negligent acts or omissions and/or any breach by you of these Terms.
10.3 To the maximum extent permitted by law neither Party shall be liable to the other for any loss of income, profits, revenue or savings or for any loss of an opportunity suffered by either Party or otherwise for any indirect, special, incidental or consequential damages arising under or connected in any way whatever with the use of the Loyalty App Platform.
10.4 Except for your obligation to pay money, neither Party shall be liable to the other for any delay or failure to perform its obligation under these Terms if such delay or failure is due to a cause or matter beyond the reasonable control of that Party.
10.5 Any tax, liability, duty, charge or impost of any kind incurred by you arising from your use of the Loyalty App Platform is your responsibility solely.
11.1 If you have any complaints in relation to the Loyalty App Platform please contact us at email@example.com.
11.2 If we receive a complaint from a Merchant in relation to you, you will cooperate with us in our investigation into the complaint.
12. Dispute resolution
12.1 You must negotiate in good faith with us to resolve any dispute which arises between us and you under or in connection with these Terms, even if the dispute involves third parties. If a dispute is not resolved within a reasonable time, either Party may refer the matter to mediation and must do so before initiating proceedings in a court to resolve the dispute. Nothing in this clause prevents either Party from applying to a court for urgent injunctive or interlocutory relief.
13.1 Governing Law
These Terms are governed by and are to be construed in accordance with the laws in force in the State of Western Australia. You agree to submit to the non-exclusive jurisdiction of the courts of that state.
13.2 Severable provisions
If any provision of these Terms is held to be invalid, unenforceable or illegal for any reason, then that provision shall be severed and the remainder of these Terms shall remain in full force and effect.
13.3 No assignment
The rights granted under these Terms are personal to the parties. Neither party may assign its rights or obligations under these Terms without the prior written consent of the other.
The failure by a Party to exercise or delay exercising a right or power does not operate as a waiver of that right or power and does not preclude the future exercises of that right or power. A waiver is not effective unless it is in writing.
These Terms constitute the entire understanding relating to your use of the Loyalty App Platform between the Parties unless any representation or warranty made about these Terms was made fraudulently.
These Terms supersede all prior representations, writings, negotiations or understanding with respect to the Loyalty App Platform.
Any notice to be given or made pursuant to these Terms may be served:
(b) by email to the email address specified in your account details; or
(c) if no valid email address is held by us, to the postal address specified in your account details or at any other address of which prior notification has been given, and any notice by post will be deemed to have been received at the expiration of two Business Days after the same has been properly posted.
14. Contact us
If you have any questions in relation to these Terms please contact us at firstname.lastname@example.org.