Terms of Use

Publication Date: [Jan 2018]

These Terms set out the legal agreement between you and LoyLap governing your use of LoyLap’s Services, LoyLap App, analytics and all other associated features. Please read these Terms carefully. Your use of the Services, is subject to these Terms. LoyLap may amend these terms from time to time. By continuing to use the Services you agree to comply with and be subject to these Terms.

Unless the context otherwise clearly indicates, words used in the singular include the plural, the plural includes the singular, and the neuter gender includes the masculine and the feminine. All capitalised terms herein are defined in Clause 20 of these Terms.

Terms Governing Use of the Services

  1. LoyLap Member Account Registration.
    1. LoyLap enables you to process Transactions with Merchants and to participate in Loyalty Programs offered by Merchants. When you process any Transactions with a Merchant, you are advised to read any applicable terms and conditions which that Merchant may provide.
    2. You may register a LoyLap Member Account in order to use the Services. Upon registering a LoyLap Member Account you will be required to provide certain information as requested by a Merchant. All information provided at the registration process and throughout the lifetime of your LoyLap Member Account must be accurate, true and complete. It is especially important that you keep your registered e-mail address up-to-date as this is the method by which we will contact you if there are any issues with your LoyLap Member Account. It is also the means by which the Merchant(s) can communicate with you if they so choose. LoyLap reserves the right to suspend or terminate the LoyLap Member Account of any Member who provides inaccurate, untrue, or incomplete information, or who fails to comply with any of the foregoing account registration requirements.
    3. LoyLap Member Accounts are personal to the person who registered a LoyLap member Account and under no circumstances may a LoyLap Member Account be transferred to any other person.
    4. You must be thirteen (13) years of age or over to use LoyLap. By registering with LoyLap you represent and warrant to us that: (i) you are at least thirteen (13) years of age; and (ii) you are eligible to register and use the Services.
    5. 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. You must not disclose it to any third party.
    6. In order to access and use the Services, you must download the LoyLap App onto a Compatible Mobile Device and register an account, or you must register an account directly with the Merchant. The LoyLap App is available from the Apple App Store and the Google Play Store. When you install the LoyLap App, you will be asked to create your profile and to create a LoyLap Member Account.
    7. Whilst we take reasonable care to ensure that our software does not contain any viruses, bugs or malware, we accept no liability in the event that any damage or corruption is caused to any device or data from downloading, updating or using the LoyLap App or any other software made available by LoyLap.
    8. You are required to install any and all software updates that become available from time to time in order to continue using the Services.
  2. Compatible Mobile Devices.
    1. Your LoyLap Member Account permits you to process Transactions on a Compatible Mobile Device. LoyLap does not guarantee that the Services will be available with any Compatible Mobile Device modified contrary to the manufacturer’s software or hardware guidelines. You acknowledge that the use of any such modified device to use the Services is expressly prohibited, constitutes a violation of these Terms, and is grounds for termination of your LoyLap Member Account. LoyLap is currently only available on Android and iOS applications.
    2. LoyLap cannot guarantee that the Services will be compatible with your mobile device or third party carrier.
  3. Your LoyLap Balance.
    1. The Services enable you to process Transactions and participate in Loyalty Programs. Rewards can only be spent with the Merchant with which they were earned and cannot be exchanged for cash for any reason whatsoever. A Merchant may, at their sole discretion, exchange LoyLap cash balances for a gift card, but this is solely at the discretion of each individual Merchant.
  4. LoyLap Purchase Information.
    1. By using our Services, you grant LoyLap permission to share with Merchants, whom you interact with, information regarding your activity on the Services. You also give us permission to import into your LoyLap Member Account and to share with Merchants information about Transactions you have made. This information will be shared exclusively with the Merchant(s) where you have used LoyLap.
  5. LoyLap Key Ring Fobs/Cards.
    1. Merchants may issue LoyLap key ring fobs, PVC Cards, wristbands or any other payment device / vehicle / peripheral (“Cards”) to Members for the purpose of processing Transactions. Unless stated otherwise, Cards remain the property of the Merchant who issued them and may be requested to be returned at any time.
  6. Your Privacy.
    1. Your privacy is paramount to LoyLap. We may request certain information from Members to provide our Merchants with information on their customers so that they can better understand their business. All information which we provide to Merchants is designed to improve the service provided by Merchants for the benefit of their loyal customers.
    2. Our Privacy Statement is incorporated into these Terms. Upon acceptance of these Terms you confirm that you have read, understood and accepted LoyLap’s Privacy Statement.
  7. Customer Service and Complaints.
    1. You understand and agree that LoyLap is not responsible for fulfilment of the goods and/or services that are offered to you by Merchants who participate in the Services. However, if a Merchant breaches any term of its agreement with LoyLap or the terms and conditions of their Loyalty Program, we will take reasonable measures to work with you and the Merchant to resolve the issue.
    2. In the event that you have any issue with any Transaction processed by a Merchant, you should contact the Merchant or follow the procedure set out in the Services. The Member shall, in the event of any issue with any Transaction or Loyalty Program, have no claim against LoyLap. Any claims by a Member for non-fulfilment or incorrect fulfilment shall exist and be made by the Member exclusively against the applicable Merchant.
  8. LoyLap Transaction.
    1. LoyLap Transactions include a wide variety of services. In particular, certain Transactions may provide Members and Merchants with the ability to enter into an agreement amongst themselves whereby Members prepay for goods and/or services. LoyLap accepts no responsibility whatsoever for any Transaction where monies are prepaid by Members to Merchants. You agree and understand that all monies prepaid through any Transaction may be non-refundable.
    2. For the avoidance of doubt, any Transaction where the Member prepays a sum to a Merchant represents an agreement between the Merchant and Member. Accordingly, LoyLap accepts no responsibility, in any disputes arising out of such Transactions, including but not limited to:
      1. failure by the Merchant to satisfy full amounts advanced by the Member;
      2. the Merchant entering liquidation, examinership, administration, receivership or any other insolvency proceedings; or
      3. any other issue which does not relate directly to the functionality of LoyLap’s technology infrastructure.
    3. We have implemented technical and organisational measures designed to secure your personal information from accidental loss and from unauthorised access, use, alteration or disclosure. However, we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
  9. Loss or Non-Permitted Use.
    1. It is your responsibility to ensure that your mobile device and LoyLap Card are kept safe and in a secure place at all times. We strongly recommend that your mobile device is secured by way of a pin-code, password or your mobile device’s equivalent. In the event that your mobile device and/or LoyLap Card is lost, stolen or otherwise used without your permission, LoyLap accepts no responsibility and excludes all liability for any loss suffered by you as a result of such non-permitted use. Notwithstanding this, if your mobile device or LoyLap Card is lost, stolen or otherwise used without your permission you should contact us through the Services. LoyLap will endeavour to suspend the LoyLap Member Account and/or LoyLap Card on receiving this email as soon as is reasonably practicable thereafter.
  10. Suspension and Termination.
    1. It is of great importance to us that you receive a reliable and efficient service. However, should we have reasonable grounds to suspect that you have:
    2. breached these Terms; or
    3. been involved or participated in dishonest, abusive or fraudulent behaviour with respect to the Services, we reserve the right to immediately suspend or cancel your account without prior notice or warning.
    4. You agree not to use or launch any automated system, including without limitation, robots, spiders, offline readers, etc., that accesses the Services in a manner that sends more request messages to the LoyLap servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. You agree not to collect, mine or reproduce any personal identifiable information, including account names, from the Services nor to use the communication systems provided by the Services for any commercial solicitation purposes. You agree not to use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. LoyLap may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without notice and liability, if, in LoyLap’s sole determination, you violate any of the Terms, including, but not limited to, the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Services; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Services; or, (vi) bypassing the measures we may use to prevent or restrict access to the Services, including, but not limited to, registering for the Services with false or misleading personal details. Upon termination for any reason, you continue to be bound by these Terms.
    5. You may close your LoyLap Member Account at any time by following the instructions provided in the Services.
  11. Effect of Termination.
    1. We will not be liable to you for compensation, reimbursement, or repayment of any kind in connection with any termination or suspension of your LoyLap Member Account. Upon termination, howsoever arising, you may no longer be entitled to any Rewards or benefits accruing under any Loyalty Program and all associated balance Rewards you received on the Services will be deleted and you will not be reimbursed such Rewards. Rewards cannot be transferred to any other person or medium.
  12. General Liability.
    1. Members should take careful note of the following:
      1. LoyLap is not the seller of the products and/or services supplied by Merchants;
      2. the rights and obligations relating to the Members’ acquisition of any goods or services provided by a Merchant shall exist between the Merchant and Member only. Following the conclusion of a contract between a Member and a Merchant, LoyLap assumes no warranty or liability for any of the Merchant’s obligations thereunder;
      3. Merchants are solely responsible for the supply of goods or services, including (but not limited to) all issues arising from any Transaction, Loyalty Programs or Rewards. In this regard, LoyLap excludes all liability for any damage, loss, consequential loss, bodily harm or any other adverse effect which may arise from the products and/or services provided by Merchants; and
      4. LoyLap assumes no liability to any Member whatsoever, including without limitation, liability by reason of the termination or amendment of any Transaction, Loyalty Program or Reward or the addition or removal of any Merchants from the Services.
      5. Nothing in these Terms shall exclude or limit our liability for any liability which cannot be excluded or limited by applicable law. As a consumer, nothing in these Terms affects your non-excludable statutory rights.
      6. While we try to ensure that all information relating to the Services (including but not limited to promotions, prices, Merchants and their products/services) is accurate and up-to-date there may be, on a rare occasion, errors or omissions in respect of the information displayed on the Services. We exclude all liability for any such errors and/or omissions and we will be entitled to cancel or amend any such service, promotion or offer subject to such an error and/or omission. If we notice an error or omission we may contact you to inform you of the amendment or cancellation.
      7. Without limitation to the foregoing, LoyLap shall not be liable for any direct, indirect or consequential loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation and damage to or corruption of data.
      8. Without prejudice to Clause 14.2 LoyLap’s maximum aggregate liability for all claims for breach of these Terms (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the lesser of: (i) 50% of the total value of any Rewards earned by the Member in the previous one (1) month period; or (ii) ten euro (€10).
    2. Members and Merchants may be given the opportunity to post Content onto the Services. LoyLap excludes any and all liability in respect of Prohibited Material uploaded by Members. LoyLap does not endorse any Content uploaded by Members and/or Merchants.  If you believe that Prohibited Material has been uploaded or in any way disseminated through the Services please contact us through the Services. For the avoidance of doubt, uploading or in any way disseminating Prohibited Material on the Services is considered a fundamental breach of these Terms and may result in the offending party’s LoyLap Member Account being suspended and/or terminated.
    3. For any Content that you upload to the Services, you grant LoyLap a non-exclusive, royalty-free, 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 in order to provide and promote the Services and LoyLap’s business, including for LoyLap’s own advertising and marketing purposes. You retain all rights in your Content, subject to the rights granted to LoyLap in these Terms.
    4. Without limitation to the foregoing, LoyLap excludes any and all liability in respect of infringement of intellectual property rights by Content. LoyLap respects the intellectual property rights of others and we ask you to do the same. If you believe that your work has been posted on the Services of LoyLap in a way that constitutes intellectual property right infringement, please contact us through the Services.
  13. Third Party Services and Links to Other Web Sites.
    1. You may be offered Third Party Services through the LoyLap App or website (www.LoyLap.com). If you decide to use these Third Party Services you will be responsible for reviewing and understanding their terms of use. You agree that LoyLap is not responsible for the performance of such Third Party Services. The LoyLap website (www.LoyLap.com) may contain links to third party websites as a convenience to you. The inclusion of any website link does imply an approval, endorsement, or recommendation by LoyLap. You agree that you access any such website at your own risk, and that the site is not governed by the terms and conditions contained within these Terms or our Privacy Statement. LoyLap expressly disclaims any liability for these websites. Please remember that when you use a link to which leads you to another website, our Privacy Statement is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our website, is subject to that website’s own rules and policies.
  14. Severability Clause.
    1. If any provision of these Terms is prohibited by law or judged by a court to be invalid, illegal or otherwise unenforceable, such provision shall not affect the other provisions of these Terms and the enforceability of the remainder of these Terms shall not be affected.
    2. These Terms shall be governed by and construed in accordance with Irish law and each party agrees to submit to the exclusive jurisdiction of the Irish courts.
  15. Entire and Final Terms.
    1. These terms and any documents referred to herein constitutes the entire Terms between the Merchant and LoyLap and supersedes all other terms, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. In these Terms, we use various defined terms. You will recognise that they are defined as they begin with a capital letter. This is what they mean:
      1. “Compatible Mobile Device” means any iPhone which operates from the ‘iOS7’ platform or above and any other mobile device which operates from Android 2.3 (‘Gingerbread’) or above that complies with Clause 3 of these Terms.
      2. “Content” means any content, including but not limited to images, videos, hyperlinks and text (including opinions and statements) uploaded to the Services by a Member or Merchant.
      3. “LoyLap”, “We” (or “we”) or “us” means Smart Points Limited trading as LoyLap with an address at Suite 12, Guinness Enterprise Centre, Taylor’s Lane, Dublin 8, Ireland including any subsidiaries or affiliates of Smart Points Limited.
      4. “LoyLap App” means the ‘LoyLap’ and ‘LoyLap Merchant’ mobile applications available for download on the Apple App Store and Google Play Store.
      5. “LoyLap Member Account” means a person who registers an account with LoyLap or otherwise uses the Services to purchase goods and/or services from Merchants.
      6. “LoyLap Merchant Account” means a Merchant’s account with LoyLap that is used for processing Transactions applicable to that Merchant.
      7. “Loyalty Program” means the terms and conditions set by Merchants and pursuant to which a Merchant provides Rewards to Members through the Services.
      8. “Member” means any person who uses the Services to avail of any goods or services provided by Merchants or who carry out any Transactions or participate in any Loyalty Program.
      9. “Merchant” means a supplier of goods and/or services who has a LoyLap Merchant Account.
      10. “Premises” means the building used by the Merchant for the purposes of supplying goods and/or services to Members.
      11. “Prohibited Material” means any Content which is defamatory, offensive, abusive or illegal.
      12. “Rewards” means any cash back, loyalty stamps or any other product/service provided by a Merchant to Members in exchange for their loyalty via the Services.
      13. “Services” means the LoyLap App, analytics and all other associated features and any and all services provided by LoyLap via the website (www.LoyLap.com) including, but not limited to, any Transactions and any forum on which Content may be uploaded.
      14. “Terms” means these LoyLap Member Terms of Use which incorporates LoyLap’s Privacy Statement.
      15. “Third Party Services” means services, products and promotions supplied by a party other than LoyLap.
      16. “Transaction” means any interaction carried out by a Member or a Merchant on the Services.
      17. “You” (or “you”) and “Your” (or “your”) means the Member.

[1] Privacy Statement

Please read the following important terms and conditions before you purchase any services, hardware or materials through the LoyLap Website or the LoyLap 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), 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’, ‘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 the LoyLap Website and the LoyLap Merchant App and you should regularly check for the most recent version. If we make changes to these Terms we will notify of 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 the LoyLap Merchant App and the LoyLap Website, there may be times where we have to undertake scheduled or unscheduled maintenance. You acknowledge and accept that the LoyLap Merchant App, the LoyLap Website and the Services may not be available at all times.
    3. LoyLap is not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge and agree that the LoyLap Merchant App, the LoyLap Website and the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    4. Our provision of the LoyLap Merchant App, the LoyLap Website and the Services is and shall be on a non-exclusive basis. Nothing in these Terms prevent us from providing the LoyLap Merchant App, the LoyLap Website 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 the LoyLap Website and LoyLap 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 the LoyLap Website, the LoyLap 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. LoyLap Merchant Account
    1. By agreeing to these Terms, and as a condition to your use of the LoyLap Merchant App 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 a LoyLap 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 LoyLap Merchant Account. A LoyLap Merchant Account can only be created through the LoyLap Website or a LoyLap Merchant App. A LoyLap Merchant App should be downloaded to a Compatible Mobile Device or a POS. Only one LoyLap Merchant Account can be used in respect of one Premises. You must treat your username and password you choose for a LoyLap 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 LoyLap Merchant Account registration process and throughout your receipt of the Services and your LoyLap 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 LoyLap Merchant Account, and as a condition of your use of the LoyLap Merchant App, the LoyLap Website 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 LoyLap could negatively impact LoyLap’s interests or otherwise bring the LoyLap brand(s) into disrepute; or (viii) to promote, market and/or sell any immoral or distasteful goods or services (as determined by LoyLap in its 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 LoyLap 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 LoyLap Merchant Account when you are not using the Services. LoyLap takes 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 LoyLap 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 LoyLap as a result of, arising from or in connection with any Transactions under your LoyLap 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 LoyLap 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 LoyLap 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 LoyLap 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 LoyLap 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 LoyLap 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 LoyLap Merchant App or the Services and/or provide to LoyLap for incorporation into any Hardware and Materials, you hereby grant to LoyLap 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 LoyLap’s business, including for LoyLap’s own advertising and marketing purposes. You retain all rights in your Content, subject to the rights granted to LoyLap in these Terms.
    4. LoyLap excludes any and all liability in respect of Content, whether provided or uploaded by you, other Merchants or Members. LoyLap does not endorse any Content uploaded and/or provided to LoyLap by you, Merchants or Members. Uploading or in any way disseminating Prohibited Material on the LoyLap Merchant App or Services is considered a breach of these Terms and may result in your LoyLap 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 LoyLap, LoyLap excludes 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 LoyLap 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 LoyLap as a result of, arising from or in connection with any claim made against LoyLap 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 LoyLap and/or the Services through any online review platform you acknowledge that we may publish your testimonial or review on the LoyLap Website 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. LoyLap Software
    1. In order to use the Services, you must download a LoyLap Merchant App onto a Compatible Mobile Device or a POS. You will be able to begin using a LoyLap Merchant App by logging in to the LoyLap Merchant App with the email address and password you chose during the LoyLap Merchant Account registration process.
    2. While we take reasonable care to ensure that the LoyLap Website, the LoyLap Merchant App 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 a LoyLap Merchant App, using the LoyLap Website, the Services and/or any other software made available by LoyLap 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 LoyLap 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 a LoyLap Merchant App, the LoyLap Website and the Services including internet access. You are also solely responsible for ensuring that all persons who access a LoyLap Merchant App, the LoyLap Website 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 LoyLap Merchant App 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 LoyLap Merchant Account and your access to the Services.
  8. Hardware and Materials
    1. LoyLap may, at its sole discretion, sell to Merchants through the LoyLap Website 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 LoyLap continues 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 LoyLap 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 LoyLap may require, and/or if LoyLap determines necessary you shall allow or procure LoyLap 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. LoyLap 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, LoyLap 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 LoyLap 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 LoyLap Merchant Account and to ensure your inventory is current, correct and regularly synchronised with your LoyLap 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 LoyLap. [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, revokable, 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 LoyLap 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. [LoyLap is a controller of certain personal data provided to us by Members through a LoyLap 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. LoyLap 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 LoyLap 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. LoyLap 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 LoyLap. 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 LoyLap, pay to LoyLap 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 LoyLap 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 LoyLap 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. LoyLap reserves the right to suspend your LoyLap 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. LoyLap will provide thirty (30) days’ prior notice [by email to the email associated with your LoyLap 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 LoyLap 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 LoyLap Merchant Account. If you change the subscription plan associated with your LoyLap Merchant Account you will not receive another Trial Service for that LoyLap 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, LoyLap grants you a non-exclusive, non-transferable, non-sublicensable and revocable license (during the term of your subscription for the Services) to: (i) install the LoyLap 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 LoyLap and not any POS companies integrated with LoyLap or its agents, subcontractors, representatives or employees.
    2. You will not acquire any right, title or interest in or to the LoyLap 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 LoyLap Merchant App and the Services are expressly reserved by LoyLap 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App and/or the Services, or permit the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App and/or the Services; (v) market, share, distribute, offer for sale or sell copies of the LoyLap Website, the LoyLap Merchant App and/or the Services in any way contrary or inconsistent with the rights granted and restrictions under these Terms; (vi) [use or access the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App and/or the Services; and/or (xii) use the LoyLap Website, the LoyLap Merchant App and/or the Services in any unlawful manner or for any unlawful purpose or in any manner inconsistent with these Terms.
    3. LoyLap may, in its sole discretion, release subsequent releases or versions of the LoyLap Merchant App. 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 the LoyLap Website, the LoyLap Merchant App and/or the Services in a manner that sends more request messages to LoyLap 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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 the LoyLap Website, the LoyLap Merchant App 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. LoyLap 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 LoyLap’s 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 LoyLap Merchant Accounts
    1. If there is no activity on your LoyLap Merchant Account (including access or any Transactions) for at least twenty-four (24) months consecutively, we reserve the right to terminate your LoyLap 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 LoyLap. You confirm that you have read and understood LoyLap’s 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. LoyLap 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, LoyLap 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 LoyLap 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. LoyLap shall not be liable for, and you unconditionally and irrevocably indemnify and shall keep fully and effectively indemnified and hold harmless LoyLap (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 LoyLap arising out of or in connection with any claim as a result of or arising out of your use of the LoyLap Website, the LoyLap Merchant App, 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 the LoyLap Website, the LoyLap Merchant App and 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 the LoyLap Website, the LoyLap Merchant App 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. LoyLap 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. LoyLap 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, LoyLap 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, LoyLap’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 LoyLap 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 LoyLap 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, LoyLap 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 LoyLap;]
      5. LoyLap 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 LoyLap’s ability to exercise its rights or perform its obligations hereunder, and such impairment cannot be cured within a reasonable period of time (as LoyLap 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 [LoyLap 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 LoyLap 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 LoyLap 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, LoyLap will suspend the collection of Fees during any period of restriction or suspension. If LoyLap ends 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 LoyLap Merchant Account can be closed. The closing of your LoyLap Merchant Account may take up to eight (8) weeks to process, as LoyLap may contact Members of 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 LoyLap shall be immediately paid in full by you;
      2. all rights and licenses granted by LoyLap 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]. LoyLap reserves 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 LoyLap is prevented, hindered or delayed in or from performing any of its obligations under these Terms due to a Force Majeure Event, LoyLap 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, LoyLap 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 LoyLap, assign, transfer, charge or deal in any other manner with any of your rights or obligations under these Terms. LoyLap 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 LoyLap 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 LoyLap 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 LoyLap.
    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 LoyLap 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. LoyLap 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 LoyLap 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 LoyLap from seeking interim, protective or provisional relief in the courts of any state.
  24. Defined terms
    1. Additional Services” means professional services provided by LoyLap 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 LoyLap Merchant App 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 LoyLap under these Terms [and as described on the LoyLap Website 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 LoyLap 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. LoyLap Consumer App” means the mobile application intended for use by Members in conjunction with a LoyLap Member Account.
    15. LoyLap Member Account” means a Member’s account with LoyLap that is used to engage in Transactions and other services made available through the LoyLap Consumer App.
    16. LoyLap Merchant Account” means a Merchant’s account with LoyLap that is used for processing Transactions applicable to that Merchant and managing Merchant’s subscription for the Services.
    17. LoyLap Merchant App” means a mobile application made available by LoyLap for download from various application channels for use by Merchants to create and manage a LoyLap Merchant Account and through which Merchant 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 LoyLap Member Account or who otherwise enters into Transactions as a guest without a LoyLap 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 the LoyLap Merchant App, the subscription services subscribed and provided by LoyLap 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 LoyLap 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 LoyLap may in its sole discretion determine, during which you may evaluate the Services for your own business purposes without charge.]


Previous Terms of Use

30 Jan 2018 - Merchant Terms of Use

Last Updated: 30 Jan 2018 – Section 9.1 updated to reflect Clover POS specific merchants

These Terms set out the legal agreement between you and Smart Points Ltd (T.A. LoyLap, Facilipay, The Gift Card Company), governing your use of LoyLap’s Services, LoyLap App, analytics and all other associated features. Please read these Terms carefully. Your use of the Services is subject to these Terms. These terms may be altered from time to time as our service expands and it is the Merchant’s responsibility to ensure that they are always up-to-date and to re-read this document from time to time.  By continuing to use the Services you agree to comply with and be subject to these Terms.

Unless the context otherwise clearly indicates, words used in the singular include the plural, the plural includes the singular, and the neuter gender includes the masculine and the feminine. All capitalised terms herein are defined in Clause 24 of this Terms.

  1. LoyLap Merchant Account Registration.a
    1. LoyLap requires you to open a LoyLap Merchant Account in order to use the Services. As part of our registration process you will be asked to provide information relating to your business and the nature of the goods and services you supply. All information and/or documentation provided at the registration process and throughout the lifetime of your LoyLap Merchant Account must be accurate, true and complete. It is your obligation to keep this information up-to-date in order to reap maximum utility from our Services.
    2. By registering with LoyLap you represent and warrant to us that: (i) you are at least eighteen (18) years of age; and (ii) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform your obligations under these Terms as or on behalf of the Merchant.
  2. At registration of your LoyLap 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. 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. Merchants shall take all reasonable care to ensure that any Content is accurate.
    1. Merchants and Members may be given the opportunity to upload Content on to the Services. Merchants may also be given the opportunity to provide Content to LoyLap to be incorporated into any customised Hardware and Materials provided under Clause 4. The Merchant warrants and represents that:
      1. it owns all intellectual property rights in any Content or it has acquired any licences or permissions necessary to use and upload any Content on the Services; and
      2. use of the Content on the Services does not infringe the intellectual property rights of any third party.
    2. For any Content that you upload to the Services or provide to LoyLap for incorporation into any Hardware and Materials, you grant LoyLap a non-exclusive, royalty-free, 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 LoyLap’s business, including for LoyLap’s own advertising and marketing purposes. You retain all rights in your Content, subject to the rights granted to LoyLap in these Terms.
    3. LoyLap excludes any and all liability in respect of Content. LoyLap does not endorse any Content uploaded by Members and/or Merchants.  If you believe that Prohibited Material has been uploaded or in any way disseminated on the Services please contact us through the Services. For the avoidance of doubt, uploading or in any way disseminating Prohibited Material on the Services is considered a fundamental breach of these Terms and may result in the offending party’s LoyLap Merchant Account being suspended and/or terminated.
    4. Without limitation to the foregoing, LoyLap excludes any and all liability in respect of infringement of intellectual property rights by Content. We respect the intellectual property rights of others and we ask you to do the same. It is our policy to terminate provision of the Services to any Merchant who infringes the intellectual property rights of any third party. If you believe that your work has been posted through the Services in a way that constitutes intellectual property right infringement, please contact us through the Services, providing details of the infringement.
    5. The Merchant shall indemnify LoyLap against all liabilities, costs, expenses, damages and losses (whether direct or indirect) including without limitation loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses suffered or incurred by LoyLap arising out of or in connection with any claim made against LoyLap for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with use of the Content.
  3. LoyLap Software.
    1. In order to use the Services, you must download the LoyLap App onto a Compatible Mobile Device, or a Point of Sale system compatible with the LoyLap Services (“POS”). You will be able to begin using the LoyLap App by logging in with the email address and password you chose during the LoyLap Merchant Account registration process. Whilst we take reasonable care to ensure that our software does not contain any viruses, bugs or malware, we accept no liability in the event that any damage or corruption is caused to any device or data from downloading, updating or using the LoyLap App or any other software made available by LoyLap.
    2. You are required to install any and all software updates made available by LoyLap from time to time in order to continue using the Services.
  4. LoyLap Hardware and Materials.
    1. LoyLap may, at its sole discretion, sell certain hardware to Merchants (which may include, without limitation, tablets, beacons, Smartphones, wearable devices, any type of RFID/HiD readers, any plastic cards or related printed materials) to use in connection with the Services (the “Hardware and Materials”).
    2. Until all Fees in relation to same are paid by you, Hardware and Materials shall at all times remain the property of LoyLap, and you shall have no right, title or interest in or to the Hardware and Materials (save the right to possession and use of same subject to these Terms).
    3. The risk of loss, theft, damage or destruction of the Hardware and Materials shall pass to you on delivery of same to your premises and shall remain at your sole risk whilst in your possession, custody or control.
    4. Where LoyLap continues to provide the Services, the Merchant shall:
      1. ensure that the Hardware and Materials is kept and used in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff;
      2. maintain at its own expense the any Hardware and Materials (where applicable) in good and substantial repair in order to keep it in an 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;
      3. where the Merchant fails to pay any Fees in respect of the Hardware and Materials, deliver up the Hardware and Materials at such address as LoyLap requires, or if necessary allow LoyLap or its representatives access to the Merchant’s premises or any premises where the Hardware and Materials is located for the purpose of removing the Hardware and Materials.
  5. Verification and Inspection.
    1. LoyLap may, for the purposes of verification, request additional information and/or documentation including, but not limited to, government issued identification (i.e. passport, driver’s licence etc.) or, in the case of incorporated entities, a Certificate of Incorporation or any related constitutional documentation. Where the Merchant fails to provide any information requested under this Clause 5, LoyLap may terminate the provisions of any Services to the Merchant.
    2. You shall allow LoyLap (or its professional advisers) to access your premises, personnel, systems and relevant records to verify your compliance with these Terms. Subject to the obligations of confidentiality set out herein, you agree to provide LoyLap (and its professional advisers) with all reasonable co-operation, access and assistance in relation to such access.
  6. Compatible Mobile Devices.
    1. Merchants must use a Compatible Mobile Device or POS system in order to operate the Services. The Services shall not be used with any Compatible Mobile Device or POS system modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to disabling hardware or software controls—e.g. “jailbreaking”. You acknowledge that the use of any such modified device to use the Services is expressly prohibited, constitutes a violation of these Terms, and is grounds for termination of your LoyLap Merchant Account.
  7. Your LoyLap Merchant Account.
    1. By creating a LoyLap Merchant Account, you confirm that you are authorised to conduct business in the jurisdiction in which you are using the Service.
    2. By creating a LoyLap Merchant Account, you warrant and represent that you will not facilitate any Transaction or create a Loyalty Program or otherwise use the Services in connection with the following businesses or business activities: (i) any illegal activity in the jurisdiction in which you operate; (ii) 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; (iii) hate products; or (iv) in the opinion of LoyLap, any immoral or distasteful goods or services (a “Prohibited Activity”).
    3. You are responsible for ensuring that your processing of any Transaction, operation of a Loyalty Program and associated Rewards and use of the Services are compliant with the laws in the jurisdiction(s) in which you provide your services, including without limitation, any applicable tax law, laws governing prepaid cards and special offers such as rebates and coupons. You agree to make available to Members, who access or avail of any of your Loyalty Programs or Rewards, any terms and conditions applicable to your Loyalty Program.
    4. 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. You must not disclose it to any third party.
    5. You are responsible for logging out of the LoyLap Merchant Account when you are not using the Services. LoyLap takes absolutely no responsibility for and you will indemnify us for any loss arising as a result of any Transactions under your LoyLap Merchant Account, including without limitation, any misleading Rewards sent to Members, or cash back given out without your consent. LoyLap has processes in place to monitor and suspend suspicious activity, but this is in no way a guarantee that unauthorised Rewards cannot be applied. It is your responsibility to ensure that any Rewards applied on behalf of your business, are legitimate and fully redeemable.
    6. You are responsible for ensuring that processing any Transactions or your operation of your Loyalty Program is in accordance with your business policy and will be guaranteed and redeemed once a Member has correctly processed a Transaction.
    7. You agree that LoyLap is not a party to any contractual relationship between you and any Member who purchases any goods or services from you, using a Transaction or otherwise or who accesses or avails of any of your Loyalty Programs or Rewards.
  8. Your Authorisation.
    1. LoyLap is permitted to hold, analyse and study all information pertaining to Merchants’ use of the Services. We may use this information to, amongst other things, administer, support, improve and develop our business, for any other purpose whether statistical or analytical.
  9. Our Fees.
    1. LoyLap operates a subscription and/or transaction fee based services. You agree to pay the Fees every month for the duration of your use of the Services; unless otherwise agreed in writing with a LoyLap employee. Fees will be determined based on your selection of any services offered on the Services and may be based on Transactions carried out in respect of your LoyLap Merchant Account and are subjection to 30 day payment terms unless otherwise agreed with a LoyLap representative. Where you start to use any additional services provided by LoyLap through the Services, revised Fees may immediately apply. Subject to these Terms, we reserve the right to change our Fees. LoyLap will provide Merchants with ninety (90) days’ prior notice of any change in Fees for any Services used by a Merchant. If you do not agree to the change in Fees, you must close your LoyLap Merchant Account in accordance with these Terms. LoyLap reserves the right to suspend account services in the event of non-payment of fees. LoyLap reserves the right in the future to charge separate and additional fees for usage of some of our more advanced features. Failure to act promptly with payments may result in your LoyLap Merchant Account being suspended and not be reactivated until all outstanding Fees are fully paid. With respect to merchants paying via their POS System, the 90 day notice will not necessarily apply and the terms applicable will depend on the subscription agreement in the Clover App Market. Merchants are at liberty to resubscribe to new tiers as they become available.
  10. End User License Agreement (EULA).
    1. Subject to your compliance with these Terms, LoyLap grants you a non-exclusive, non-transferable, non-sublicensable and revocable license (during these Terms) to: (i) install the ‘LoyLap Merchant’ App solely on applicable devices (Android, iOS and any applicable POS where LoyLap may make the service available) owned or controlled by you; (ii) access and use the Subscription Services on devices owned or controlled by you. For the avoidance of doubt, this license is provided by LoyLap and not any POS companies integrated with LoyLap or its agents, subcontractors, representatives or employees.
    2. You will not acquire any interest in 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 Services are expressly reserved to LoyLap. Without limiting the generality of the foregoing, you will not: (i) use, modify, adapt, reformat, copy or reproduce the Services or any portion thereof, except as expressly permitted under these Terms; (ii) rent, lease, upload to or host the Services on any website or server; (iii) distribute, sublicense, assign, transfer or otherwise make available the Services to any third party; (iv) use or access Services for any other benchmarking or competitive purposes; (v) interfere with, bypass, or disable any features or functionality that is embedded in or included with the Services; and (vi) use the Services in any unlawful manner or for any unlawful purpose or in any manner inconsistent with these Terms.
    3. LoyLap may, in its sole discretion, release subsequent releases or versions of the LoyLap App. In order to continue using the Services, Merchants must obtain the then current release or version.
  11. Refund Policy.
    1. LoyLap offers a thirty (30) day money back guarantee for Merchants who wish to cancel their subscription within thirty (30) days of first registering on the Services.
    2. LoyLap will not issue refunds for any Materials used in connection with the Services (including without limitation any plastic cards or printed materials). LoyLap reserves the right to refuse charge-backs or cash refunds in particular where there is no fault in the goods.
  12. Dispute Resolution.
  13. Any dispute or difference arising out of or in connection with these Terms shall be referred to and finally resolved by arbitration under the provisions of the Arbitration Act 2010 and any statutory amendment or modification thereof, by a tribunal comprising one arbitrator which, in default of the parties’ agreement as to the arbitrator is/are to be appointed by the Law Society of Ireland.
    1. The seat of the arbitration shall be Dublin, Ireland. The law governing this arbitration agreement 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; and
    3. The award of the arbitrator shall be final and binding on the parties and may be enforced in any court of competent jurisdiction.
  14. Dormant LoyLap Accounts.
    1. If there is no activity on your LoyLap Merchant Account (including access or any Transactions) for at least two (2) years consecutively, we reserve the right to terminate your LoyLap Merchant Account. Termination will result in the deletion of personally identifiable customer information and is not retrievable.
    2. The privacy of our Members and Merchants is of paramount importance to LoyLap. Upon acceptance of these Terms, you confirm that you have read, understood and accepted LoyLap’s Privacy Statement.[1] We do not share any business specific information with any parties whatsoever, nor do we share the e-mail addresses or full names of our Members with any third parties.
  15. LoyLap Transactions.
    1. LoyLap Transactions include a wide variety of services. In particular, certain Transactions may provide Members and Merchants with the ability to enter into an agreement amongst themselves whereby Members prepay for goods and/or services. The Services include, without limitation; Gift, Loyalty, LoyLap Upfront, Self Check-Out and Order Ahead. Where Merchants avail of any Transaction where a Member prepays a sum to the Merchant, the Merchant must hold any prepaid sum on trust for the Members and agree not to mix such monies with the operational cash of the business. The Merchant must realise each purchase individually and realise all relevant taxes on an individual basis. LoyLap accepts no responsibility whatsoever for monies prepaid by Members to Merchants.
    2. For the avoidance of doubt, any Transaction where the Member prepays a sum to a Merchant represents an agreement between the Merchant and Member. Accordingly, LoyLap accepts no responsibility, in any disputes arising out of such Transactions, including but not limited to:
      1. failure by the Merchant to satisfy full amounts advanced by the Member;
      2. the Merchant entering liquidation, examinership, administration, receivership or any other insolvency proceedings; or
      3. any other issue which does not relate directly to the functionality of LoyLap’s technology infrastructure.
  16. General Liability.
    1. Merchants warrant and represent that:
      1. the Merchant alone is the seller of the products and/or services it supplies;
      2. the Merchant’s use of the Services will not create any liability on the part of LoyLap in respect of the supply of goods or services by the Merchant and the Merchant will remain directly liable in relation to such supply;
      3. the Merchant is solely responsible for providing support and related services to a Member for all issues related to that supply of goods or services, including (but not limited to) all issues arising from any Transaction, Loyalty Programs or Rewards;
      4. the Merchant is solely responsible for processing any Transaction and redeeming Members’ Rewards and for providing the products and/or services.
    2. LoyLap shall not be liable for, and you will indemnify and keep indemnified LoyLap, our affiliates and licensors, and each of our and their respective employees, officers, directors and representatives, and hold harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including all legal fees), arising out of or in connection with any claim arising out of your use of the Services, including, without limitation: (i) claims, losses, damages, liabilities arising out of or in connection with any Loyalty Programs, 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 without limitation privacy regulations) related to your use of the Services.
    3. Nothing in these Terms shall exclude or limit our liability for any liability which cannot be excluded or limited by applicable law.
    4. While we try to ensure that all information relating to the Services (including but not limited to promotions, prices, Merchants and their products/services) is accurate and up-to-date there may be, on a rare occasion, errors or omissions in respect of the information displayed on the Services. We exclude all liability for any such errors and/or omissions and we will be entitled to cancel or amend any such service, promotion or offer subject to such an error and/or omission. If we notice an error or omission we may contact you to inform you of the amendment or cancellation.
    5. To the fullest extent permitted by law, LoyLap makes no warranties, whether express or implied, with respect to any Hardware and Materials provided by LoyLap, and LoyLap disclaims any and all implied warranties, including, those of merchantability and fitness for a particular purpose.
    6. Without limitation to the foregoing, LoyLap shall not be liable for any direct, indirect or consequential loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation and damage to or corruption of data.
    7. Without prejudice to Clause 16.3, LoyLap’s maximum aggregate liability for all claims for breach of these Terms (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the lesser of: (i) 50% of the total Fees paid by the Merchant in the previous six (6) month period; or (ii) one hundred euro (€100).
    8. We have implemented technical and organisational measures designed to secure your personal information from accidental loss and from unauthorised access, use, alteration or disclosure. Whilst LoyLap use 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 information at your own risk.
  17. Suspension and Termination.
    1. It is of great importance to us that you receive a reliable and efficient service. However, should we have reasonable grounds to suspect that you are:
      1. in breach of these Terms;
      2. operating the Service or any Hardware and Materials in your business in such a way which could negatively impact LoyLap’s interests;
      3. bringing the LoyLap brand into disrepute;
      4. are involved in or carrying out any Prohibited Activity; or
      5. involved or participating in dishonest or fraudulent behaviour with respect to the Services,
      6. we reserve the right to immediately suspend or cancel your LoyLap Merchant Account and cease providing any Services to you without prior notice or warning.
    2. You agree not to use or launch any automated system, including without limitation, robots, spiders, offline readers etc., which accesses the Services in a manner that sends more request messages to LoyLap servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. You agree not to collect, mine or reproduce any personal identifiable information, including account names, from the Services nor to use the communication systems provided by the Services for any commercial solicitation purposes. You agree not to use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. LoyLap may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without notice and liability, if, in LoyLap’s sole determination, you violate any of the Terms, including the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Services; (iv) impersonating another person/business or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your business identity; (v) interfering with the proper working of the Services; or, (vi) bypassing the measures we may use to prevent or restrict access to the Services, including, but not limited to, registering for the Services with a non-enterprise or non-work-related email address. Upon termination for any reason, you continue to be bound by these Terms.
    3. Without limitation to the foregoing, LoyLap reserves the right to terminate these Terms and the provision of the Services on the occurrence of any of the following events and any such event shall be a fundamental breach of these Terms:
      1. failure to pay an 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. failure to comply with the terms of any such written notice within the time stipulated; and
      3. violates any policies and terms of or creates liability for any POS system integrated with LoyLap.
    4. If any sum payable under these Terms is not paid when due, the Merchant shall pay to LoyLap interest on such sum calculated on a daily basis and compounded monthly from the due date until payment at the rate of 8% per annum. If your account is suspended for any reason, LoyLap reserves the right to charge a fee for reactivation of service.
  18. Termination by the Merchant.
    1. A Merchant can, at any time, request to cancel their subscription to the Services. We would be disappointed to see you go, but we realise that sometimes circumstances call for these things. Merchants can terminate these Terms and cancel their subscription by following the procedures set out in the Services. All outstanding Fees must be paid before your LoyLap Merchant Account can be closed. Termination by the Merchant may take up to eight (8) weeks to process, as LoyLap may contact Members of the imminent cessation of the Merchant’s participation in the Services.
    2. Notwithstanding termination of these Terms (for any reason), the Merchant shall remain liable to any Members in respect of any cash balances, Loyalty Programs, Rewards or any obligations in respect of any Transactions outstanding on the date of termination.
  19. No Partnership.
    1. 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.
  20. Severability Clause.
    1. If any provision of these Terms is prohibited by law or judged by a court to be invalid, illegal or otherwise unenforceable, such provision shall not affect the other provisions of these Terms and the enforceability of the remainder of the agreement shall not be affected.
    2. These Terms shall be governed by and construed in accordance with Irish law and, subject to Clause 12, each party agrees to submit to the exclusive jurisdiction of the Irish courts.
  21. Entire Agreement.
    1. These terms and any documents referred to herein constitutes the entire agreement between the Merchant and LoyLap and supersedes all other terms, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. Subject to Clause 9.1, LoyLap may change or add to these Terms and may change, remove, or insert conditions on the use of any feature or element of the Services on notice to you. Such notice may be given on our website or through the Services. By continuing to use the Services, and unless you notify us otherwise, you will be deemed to have accepted any such changes.
    3. In the Terms, we use various defined terms. You will recognise that they are defined as they begin with a capital letter. This is what they mean:
      1. “Business Day” means the days between and including Monday to Friday and does not include public, bank holidays and weekend.
      2. “Compatible Mobile Device” means any iPhone which operates from the ‘iOS7’ platform or above and any other mobile device which operates from Android 2.3 (‘Gingerbread’) or above that complies with Clause 6 of these Terms.
      3. “Content” means any content, including but not limited to a Business Name, Business Logo or any images, videos, hyperlinks and text (including opinions and statements) uploaded to the Services by a Merchant or Member.
      4. “Fees” means the fees, charges and interest payable by Merchants on all LoyLap Merchant Accounts including additional fees, charges and interest payable by Merchants for the use of optional premium features, including but not limited to targeted in-app messages, as determined by LoyLap from time to time or as may be agreed individually between the Merchant and LoyLap. Fees are available to view at www.LoyLap.com/pricing.
      5. “LoyLap”, “We” (or “we”) or “us” means Smart Points Limited trading as LoyLap with an address at Suite 12, Guinness Enterprise Centre, Taylor’s Lane, Dublin 8, Ireland, including any subsidiaries or affiliates of Smart Points Limited.
      6. “LoyLap App” means the ‘LoyLap’ and ‘LoyLap Merchant’ mobile applications available for download on the Apple App Store, Google Play Store, and any POS where LoyLap may make the LoyLap App available.
      7. “LoyLap Member Account” means a person who registers an account with LoyLap or otherwise uses the Services to purchase goods and/or services from Merchants.
      8. “LoyLap Merchant Account” means a Merchant’s account with LoyLap that is used for processing Transactions applicable to that Merchant.
      9. “Loyalty Program” means the terms and conditions set by Merchants and pursuant to which a Merchant provides Rewards to Members through the Services.
      10. “Member” means a person with a LoyLap Member Account.
      11. “Merchant” means a supplier of goods and/or services who has a LoyLap Merchant Account.
      12. “Payment Date” means close of business on the day of each month when the Services subscription was activated. Where such date is a public holiday, bank holiday or weekend, the ‘Payment Date’ will be the next occurring Business Day.
      13. “Premises” means the building used by the Merchant for the purposes of supplying goods and/or services to Members.
      14. “Prohibited Activity” has the meaning ascribed to it in Clause 7.2.
      15. “Prohibited Material” means any Content uploaded to the Services which is defamatory, offensive, abusive or illegal.
      16. “Rewards” means any cash back, loyalty stamps or any other product/service provided by a Merchant to Members in exchange for their loyalty via the Services.
      17. “Services” means the LoyLap App, analytics and all other associated features and any and all services provided by LoyLap via the website (www.LoyLap.com) including, but not limited to, any Transactions and any forum on which Content may be uploaded.
      18. “Terms” means these LoyLap Merchant Terms of Use and LoyLap’s Privacy Statement.
      19. “Transaction” means any interaction carried out by a Member or a Merchant on the Services.
      20. “You” (or “you”) and “Your” (or “your”) means the Merchant.

[1] Privacy Statement