Close

Terms & Conditions

SERVICE AGREEMENT

                                           

BETWEEN

LOYALIE IT-SOLUTIONS PRIVATE LIMITED

(“COMPANY”)

 

AND

As mentioned on the form under the field name ‘Company Name’

(“CLIENT”)

 

This AGREEMENT (“Agreement”) is made on the date as mentioned in the form under the field name ‘Date of Signing’, AMONGST:

  1. LOYALIE IT-SOLUTIONS PRIVATE LIMITED, a private limited company incorporated under the laws of India and having its registered office at 238B AJC Bose Road, 1st Floor, Kolkata 700020 (hereinafter referred to as the “Company”, which expression shall, unless repugnant to the context or meaning thereof, include its successors in title and assigns);

               

AND

  1. As mentioned on the form under the field name ‘Company Name’, a public company incorporated under the laws of India and having its registered office at the Corporate Office address as mentioned under the field ‘Address’ (hereinafter referred to as the “Client”, which expression shall, unless repugnant to the context or meaning thereof, include its successors in title and permitted assigns);

The Company and the Client are hereinafter individually referred to as a “Party” and collectively referred to as the “Parties”.

WHEREAS

  • The Company has created and developed a mobile application under the name and style of “Loyalie” (hereinafter referred to as the “Loyalie App”) and a website, namely, ‘loyalie.com’ & www.loyalie.in (hereinafter referred to as the “Loyalie Website”), as digital platforms for enabling its clients to offer marketing schemes, loyalty/ reward bonuses, schemes and other offers to their existing customers (“Business”).
  • The Client is engaged in inter alia, the business of the industry specified under the field ‘Choose an Industry’.
  • The Client is desirous of being registered with the Company, and of providing services and incentives to the Company and its partners/clients/ customers by whatever name they may be called as part of its Business and the Company has agreed to receive such services to the Client upon the terms and conditions hereinafter contained (“Services”).
  • The Parties are entering into this Agreement to record the terms and conditions on which the Client shall offer its services to the Customers, as mentioned in Recital (iii).

NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO, AND THIS AGREEMENT WITNESSETH AS UNDER:

  1. DEFINITIONS

In this Agreement, the capitalised terms, to the extent not inconsistent with the context thereof or otherwise defined herein, shall have the meanings assigned to them in Part A of Schedule 1 hereto. The rules of interpretation set out in Part B of Schedule 1 shall apply to this Agreement unless the context requires otherwise or as is expressly specified otherwise.

  1. SCOPE OF SERVICES

 

The Client acknowledges that it has entered into a relationship the Company to provide incentives and offers on the products and services the client provides in its natural course of business.

2.1          The Company has entered into a customer engagement agreement with real estate companies and engages past and current customers of these companies for loyalty incentives. The Client is desirous of participating in such loyalty incentive program and is willing to provide products and services along with a special discount/incentive/reward or by whatever name it is called to the customers of such real estate companies.

2.2          The Company shall display such incentives as laid out in Schedule 2 on various mobile applications it has developed for various real estate companies and on its website www.loyalie.com and all partner websties.

2.3          The Client shall provide these incentives as laid out in Schedule 2  on a year on year basis.

2.4          The Clone Apps and Back-End Systems, are solely and exclusively for the use of the Company and shall not be used for any other purpose or by any other person or in any manner inconsistent with the provisions of this Agreement or for any illegal purposes. The Client acknowledges that the Clone App and Back-End Systems was developed, complied, prepared, revised, selected and arranged by the Company through application of methods and standards of judgement developed and applied through expenditure of substantial time, effort and money, and constitute valuable industrial and intellectual property and trade secrets of the Company. The Client agrees to protect the proprietary rights of the Company during the tenure of this Agreement and after the terminations of this Agreement. The Client agrees and acknowledges that all intellectual property rights over the Clone App and Back-End Systems shall always belong and remain the property of the Company. The Client shall honour and comply with all written requests made by the Company to protect its contractual, statutory and rights under Law in the Clone App and Back-End Systems with the same degree of care used to protect its own proprietary rights, which in no event shall be less than reasonable efforts.  The Client agrees to notify the Company in writing promptly upon becoming aware of any unauthorized access or use by any Person or of any claim that the Clone App and/ or the Back-End Systems infringe upon any copyright, trademark, or other contractual, statutory or rights under law.

2.5          The Client shall not access the Clone Apps/ Loyalie App or the data through any medium or equipment which the Company has not authorized in writing, nor may any medium or equipment by which the Clone App and Back-End System is shared, moved, modified, interfaced, copied, broadcasted, reproduced, ported or otherwise routed with or to any other equipment without the Company’s prior written consent. In addition, the Client shall not move, modify, interface, copy, broadcast, reproduce, port or otherwise use or route the Clone App and Back-End Systems or any portion thereof with or to any other equipment, network or software that the Company in its sole and good faith judgement, determines is interacting or interfering or may interact or interfere with the performance of the Clone App or any portion thereof and, from time to time, upon the Company’s request therefor, the Client shall promptly notify the Company in writing of any and all such equipment, network and software. The Client shall not share, recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative from, the Clone App and/ or the Back-End Systems. The Client may solely use the Clone App and Back-End Systems for the purpose as set out in this Agreement and may not use the Clone App and Back-End Systems for any development purposes or to develop any applications, software or otherwise that could in any way interact or interfere with the performance of the Clone App and Back-End Systems or any portion thereof, except as the Company may expressly permit under a separate development license with the Client. Either Party shall not use the trademarks, trade names, or service marks belonging to the other Party in any manner, and the Parties acknowledge that they have no ownership rights in and to any of the names and marks belonging to the other Party.

2.6          The Company shall provide 2 hours of training on how to handle the backend application further which support will only be provided in the form of email and chat support.

2.7          The Client acknowledges that there is no assurance of any minimum amount of business being given by the company. The Company also provides no assurance of access to any particular real estate company and the final discretion to incorporate any incentives provided by the client lies solely with the Real Estate Company. The Company has no influence or bearing on the final decisions made by the Real Estate Company.

3              COMMISSION AND FEES

A waiver of charges has been agreed upon till 11:59pm 31st December 2018. After which the charges can be mutually agreed between the Company and the Client.

  • RESPONSIBILITIES OF THE COMPANY

 

  • The Company shall:
  • Seek approval from the Client before presenting the incentive to any real estate company.
  • Ensure where deployment is reached, the incentive is accessible to the end customer.
  1. RESPONSIBILITIES OF THE CLIENT

 

The Client shall:

  • Regularly apprise the company of any offers and incentives that it wishes to provide to the customers.
  • Allow a period of one month before any offer can be modified in any which way.
  • Ensure that the customer availing such offer is provided such incentive, failure to provide such product or service would lead to penal action against the Client.
  • Failure to provide the incentive to the customer could also lead to termination of this contract and an immediate repeal of the incentive across various real estate companies.
  • make prompt payment of all amounts due and payable to the Company pursuant to this Agreement within a period of 7 (seven) days from the receipt of the invoice from the Company;
  1. NON-CIRCUMVENTION

 

  1. The Client acknowledges that, during the tenure of this Agreement, the Company may disclose to the Client, information regarding person(s), entities or transactions. Even though the Client may, through reasonable inquiry, have been able to independently obtain such information, the Client hereby undertakes not to circumvent the Company, and to refrain from acting on such information, or contacting or entering into a relationship with such persons or entities, directly or indirectly, without the prior written permission of the Company. Further, the Client undertakes to not circumvent the Company by contacting any Real Estate Company that The Company has put the Client in contact with, without the prior written permission of the Company.
  1. REPRESENTATIONS AND WARRANTIES

 

Each Party represents and warrants, severally and not jointly, to the other Party hereto that:

such Party is duly organised, validly existing and good standing under the laws of its organisation and that such Party has the full power and authority, to enter into, execute and deliver this Agreement and to perform the transactions contemplated hereby, respectively, and such Party is duly incorporated or organised and existing under the Laws of the jurisdiction of its incorporation or organisation;

  1. the execution and delivery by such Party of this Agreement and the performance by such Party of the transactions contemplated hereby have been duly authorised by all necessary corporate or other action of such Party; and
  2. assuming the due authorisation, execution and delivery hereof by the other Party, this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganisation, moratorium or similar Laws affecting creditors’ rights generally.
  • REPRESENTATIONS AND WARRANTIES

 

  • Each Party represents and warrants, severally and not jointly, to the other Party hereto that:
  1. such Party is duly organised, validly existing and good standing under the laws of its organisation and that such Party has the full power and authority, to enter into, execute and deliver this Agreement and to perform the transactions contemplated hereby, respectively, and such Party is duly incorporated or organised and existing under the Laws of the jurisdiction of its incorporation or organisation;
  1. the execution and delivery by such Party of this Agreement and the performance by such Party of the transactions contemplated hereby have been duly authorised by all necessary corporate or other action of such Party; and
  2. assuming the due authorisation, execution and delivery hereof by the other Party, this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganisation, moratorium or similar Laws affecting creditors’ rights generally.
  • INDEMNITY

 

  • The Parties (each individually, an “Indemnifying Party) hereby agree, severally and not jointly, to indemnify and hold harmless the other Party, its affiliates, and their respective officers, partners, employees, directors, agents, advisors and contractors, (each individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”) at any time and from time to time, from and against any and all claims, losses, damages, liabilities, fines, penalties, costs, fees and expenses (including, without limitation, any amounts paid in settlement, interest, court costs, out of pocket fees and other expenses of investigations, attorneys, consultants, financial advisors and other experts), suffered or incurred, whether or not arising out of any third-party claim (collectively, “Losses”), to which any Indemnified Party may become subject, insofar as such Losses arise directly or indirectly out of the following:
    • any inaccuracy in or any misrepresentation or breach of any of the representations and warranties by an Indemnifying Party under this Agreement;
    • any breach or failure by an Indemnifying Party to perform any covenant, undertaking or obligation under this Agreement; and/or
    • any fraud, misconduct and/ or negligence on the part of an Indemnifying Party.
  • The right to indemnification under this Clause 8 (Indemnity), shall not be affected or treated as qualified by any actual, imputed or constructive knowledge acquired or capable of being acquired at any time by or on behalf of an Indemnified Party, whether before or after the Execution Date, with respect to the accuracy or inaccuracy of any representation and warranties herein, or compliance or non-compliance with any obligation, undertaking, representation, covenant or agreement of such Indemnifying Party under this Agreement, and no such knowledge shall prejudice any claim for breaches of representation and warranty herein or operate as to reduce any amount recoverable.
  • The indemnification rights of the Indemnified Parties under this Agreement are independent of, and in addition to, such other rights and remedies they may have at applicable Law or in equity or otherwise, including the right to seek specific performance, recession, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished by the other. Further, the Parties acknowledge that the Indemnified Parties, other than the Company and the Client, are intended third party beneficiaries of this Clause 8 (Indemnity), and notwithstanding anything to the contrary in this Agreement, the Indemnified Parties shall be entitled to enforce their indemnity right hereunder.
  • Indemnification Procedure

 

  • If any Indemnified Party is entitled to indemnification hereunder, such Indemnified Party may make an indemnity claim by giving notice to the Indemnifying Party of the Losses or of the commencement of any proceeding against such Indemnified Party. Such notice (“Claim Notice”) shall be in writing and shall specify the matter which gives rise to the claim and the amount of Loss in respect of such claim.
  • The Indemnifying Party shall, within 15 (fifteen) days of receipt of the Claim Notice pay to the Indemnified Party the amounts set out in the Claim Notice or in case of a Dispute, provide a written notice to the Indemnified Party that such Indemnifying Party disputes such Claim Notice specifying in reasonable detail the reason(s) for such Dispute, pursuant to which the Indemnified Party(ies) may opt to resolve the Dispute regarding such claim in accordance with Clause 14 (Dispute Resolution).
  • CONFIDENTIALITY

 

  • General Obligation

 

Each Party undertakes that it shall not reveal, and shall ensure that its directors, officers, managers, partners, members, employees, legal, financial and professional advisors and bankers (collectively, “Representatives”) do not reveal, to any third party, any Confidential Information (as defined hereinafter) without the prior written consent of the concerned Party, regardless of whether this Agreement is terminated or not.

  • The term “Confidential Information” as used in this Agreement means: (a) any information concerning the Parties, business, intellectual properties, technology, trade secrets, know-how, finance, transactions or affairs of the Company, any subsidiary or any other shareholder or any of their respective affiliates, partners, directors, officers or employees (whether conveyed in written, oral or in any other form and whether such information is furnished before, on or after the date hereof); and (b) any information or materials prepared by a Party or its Representatives that contains or otherwise reflects, or is generated from, Confidential Information.

 

  • Exceptions

 

The provisions of Clause 9.1 (General Obligations) shall not apply to:

 

  • disclosure of Confidential Information that is or becomes generally available to the public other than as a result of disclosure by or at the direction of a Party or any of its Representatives in violation of this Agreement;
  • disclosure by a Party to its Representatives and affiliates (and their partners, officers and directors) in accordance with this Agreement provided such Representatives and Affiliates are bound by similar confidentiality obligations;

 

  • obligations of disclosure to the extent required under Law or generally accepted accounting standards applicable to any Party, or any judicial or regulatory process, after giving prior notice to the disclosing Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, or in connection with any proceeding arising out of or relating to this Agreement; and
  • with respect to the Company, any such disclosures to its investors, advisors, consultant’s professional advisors (lawyers, accountants etc.), fund managers, any investment vehicles controlled by it, and/ or potential acquirers, provided such Persons are bound by similar confidentiality obligations.
  • NON-COMPETE AND NON-SOLICITATION

 

  • Non-Compete

 

The Client hereby undertakes and covenants that it shall not, either directly or indirectly (through one or more Persons), by themselves or in collaboration with any other Person:

  • carry on or engage in any business which competes with or is similar to the whole or any part of the Business, in any manner, including, but not limited to, as a shareholder, employee or advisor of any another Person; and
  • reverse engineer the Loyalie App/ Clone App and/ or the Loyalie Website, to develop an application which is similar to the Loyalie App/ Clone App and/ or the Loyalie Website, for the tenure of this Agreement, and for a period of 2 years from the termination of this Agreement.
  • Non-Solicitation
  • The Client acknowledges that the ability of the Company to conduct and operate its Business depends upon its ability to attract and retain customers and business associates as well as its ability to attract and retain skilled people, and that the Company has and will continue to invest substantial resources in respect of the aforementioned matters. In light of the above, the Client hereby undertakes that they and their respective affiliates shall not, either directly or indirectly (through one or more Persons), by themselves or in collaboration with any other Person:
  • partner with or enter into any activity with or hire or attempt to hire for any purpose whatsoever (whether as an employee, consultant, advisor, independent contractor, partner or otherwise) any employee of the Company or any person who was an employee of the Company at any time during the last 24 (twenty-four) months of his/ her employment without the prior written consent of the Company;
  • disclose to any third party, the names, backgrounds or qualifications of any employees of the Company or otherwise identify them as potential candidates for employment;
  • personally or through any other Person, approach, recruit or otherwise solicit employees of the Company to work for any other employer; and/or
  • persuade any Person which is a client/ customer/ business associate of the Company, to cease doing business or to reduce the amount of business which any such client/ customer/ business associate has customarily done or might propose doing with the Company or canvas or solicit any business or custom similar to the Business.
  • The restrictions set out in Clauses 1 and 10.2 above shall apply for a period of 2 years from the termination of this Agreement.
  • The Parties acknowledge and agree that the restrictions in Clauses 1 and 10.2 above are reasonable for the legitimate protection of the Business and goodwill of the Company, but in the event that such restrictions are found to be void under Law or otherwise, but would be valid if some part thereof was deleted or the scope, period or area of application were reduced, the above restrictions shall apply with the deletion of such words or such reduction of scope, period or area of application as may be required to make the restrictions contained in this Clause 10 valid and effective under Law and otherwise. Notwithstanding the limitation of this Clause 10 by any Law for the time being in force, the Parties undertake to, at all times, observe and be bound by the spirit of Clauses 10.1 and 10.2. Provided however, upon revocation, removal or diminution of the applicable Law or provisions, as the case may be, by virtue of which the restrictions contained in Clauses 10.1 and 10.2 were limited as provided hereinabove, the original restrictions would stand renewed and be effective to their original extent, as if they had not been limited by the Law or provisions revoked. The Parties hereto expressly acknowledge and agree that Company would not fulfil its obligations herein but for the Client’s covenants under Clauses 10.1 and 10.2.
  • Although no fees are being paid or are payable to the Client for undertaking the non-compete or non-solicit obligations hereunder, the covenants and agreements of the Company set forth in this Agreement, shall be deemed to be adequate consideration for the non-compete and non-solicit covenants contained in this Clause 10, the sufficiency of which is acknowledged by the Client.
  • TERMINATION

 

  • This Agreement may be terminated by either Party, without cause, by giving the other Party three months’ written notice.

 

  • The Company reserves the right, to forthwith terminate this Agreement upon the occurrence of any of the following events, by giving a notice in writing to the Client:

 

  • If the Client commits a breach of the terms of this Agreement;
  • misrepresentation in respect of any of the representations, warranties and covenants provided by the Client; and
  • If the Client circumvents the Company, as mentioned in Clause 6.
  • Upon termination, the Client shall de-register itself from the Loyalie App/ Clone App and shall cease to use the same for the purposes of its business.
  • NOTICES

 

Any notice given by a Party hereto to the other Party under this Agreement shall be in writing, shall be sent by internationally recognised courier service and/or email and shall be directed at the address and contact details and to the attention of the respective persons specified hereafter, or such other details as may be informed by any Party to the other Party, in writing, at least 7 (seven) days before the concerned notice is dispatched. Any such notices shall be deemed delivered: (a) in the case of courier at the time of first service as evidenced by the delivery receipt; or (b) in the case of email, at the time of transmission.

If to the Company

LOYALIE IT-SOLUTIONS PRIVATE LIMITED

If to Client

                As mentioned on the form under the field name ‘Company Name’

  • GOVERNING LAW AND JURISDICTION

 

  • This Agreement shall be governed by and construed in accordance with the Laws of India.
  • Subject to Clause 14 (Dispute Resolution) hereof, all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the courts in Mumbai.
  • DISPUTE RESOLUTION
  • Arbitration

 

In the case of any dispute or differences or claim arising out of or in connection with or relating to this Agreement or in the interpretation of any provisions of this Agreement, or the breach, termination or invalidity hereof (the “Dispute”), the Parties shall attempt to first resolve such Dispute through discussions for a period of 15 (fifteen) days after one Party has served a written notice on the other Party requesting the commencement of discussions. If the Dispute is not resolved through such discussions within the aforementioned time period, the Dispute may be referred to arbitration by either Party, to be finally settled by arbitration under the (Indian) Arbitration and Conciliation Act, 1996. For the purpose of such arbitration, the arbitral panel shall consist of by 3 (three) arbitrators, of which each Party to the Dispute shall appoint 1 (one) arbitrator and the 2 (two) arbitrators shall then jointly appoint a 3rd (third) arbitrator, and the decision of the majority shall be the decision of the arbitral tribunal. Such award shall be final and binding on all Parties.

  • Venue and Procedure

The seat and venue of arbitration shall be Mumbai and the language of arbitration shall be English. The arbitrator’s award shall be substantiated in writing. The arbitrators shall also decide on the costs of the arbitration procedure. The Parties shall submit to the arbitrator’s award and the same shall be enforceable in any competent court of Law.

  • MISCELLANEOUS

 

  • Announcements

None of the Parties shall make or permit any Person connected with it to make any announcement to the media or to the general public, concerning this Agreement or any ancillary matter relating to the arrangements between the Parties, except with the prior written approval of the Company.

  • Waiver

No failure or delay by the Company in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof, or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by either Party of any breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of that or any other provision of this Agreement.

  • Relation between the Parties

This Agreement shall not be construed to constitute a partnership or joint venture between the Client and the Company. Neither Party shall have any right to obligate or bind the other Party other than as stipulated under the terms of this Agreement in any manner whatsoever, and nothing contained in this Agreement shall give any rights of any kind to any third parties.

  • Amendment

No modification or amendment of this Agreement shall be valid or binding unless made in writing and duly executed by both the Parties.

  • Assignment

The Client shall not have the right to assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign its rights and obligations under this Agreement, without the prior permission of the Client.

  • Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof.

  • Partial Invalidity

If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by Law. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision. Provided however, if said provision is a fundamental provision of this Agreement or forms part of the consideration or object of this Agreement, the provision of this Clause shall not apply.

  • Authorisation

The Parties represent that the persons executing this Agreement on behalf of them, if any, have the authority to so execute this Agreement on behalf of the Parties for whom they are signing.

  • Covenants Reasonable

The Parties agree that, having regard to all the circumstances, the covenants contained herein are reasonable and necessary for the protection of the Parties. If any such covenant is held to be void as going beyond what is reasonable in all the circumstances, but would be valid if amended as to scope or duration or both, the covenant will apply with such minimum modifications regarding its scope and duration as may be necessary to make it valid and effective.

  • Survival

The provisions of Clauses 1 (Definitions and Interpretation) along with Schedule 1, 7 (Representations and Warranties), 8 (Indemnity), 9 (Confidentiality), 13 (Governing Law and Jurisdiction), 14 (Dispute Resolution) and 15 (Miscellaneous) shall survive the termination of this Agreement indefinitely.

 

IN WITNESS WHEREOF, each Party hereto has executed this Agreement, in English as of the Execution Date first above written, by itself or by its duly authorized representative.

SCHEDULE 1


Part A


Definitions

The following capitalised terms shall have the following meanings for purposes of this Agreement:

  1. Agreement” shall have the meaning ascribed to the term in the preamble of this Agreement;
  1. Back-End Systems” shall mean all the systems that support smooth functioning and running of the Referral and Loyalty Program/s, including but not limited to the Loyalie Dashboard;
  1. Business” shall have the meaning ascribed to the term in Recital (i) herein;
  1. Claim Notice” shall have the meaning ascribed to the term in Clause 4(a);
  1. Client” shall have the meaning ascribed to the term in the preamble of this Agreement;
  1. Clone App” shall have the meaning ascribed to the term in Clause 1;
  1. Company” shall have the meaning ascribed to the term in the preamble of this Agreement;
  1. Confidential Information” shall have the meaning ascribed to the term in Clause 1(b);
  1. Dispute” shall have the meaning ascribed to the term in Clause 1
  1. Execution Date” shall have the meaning ascribed to the term in the preamble of this Agreement;
  1. Indemnified Party” or “Indemnified Parties” shall have the meaning ascribed to the term in Clause 1;
  1. Indemnifying Party” shall have the meaning ascribed to the term in Clause 1;
  1. Law” shall mean any applicable national, local or other laws, statutes, ordinances, regulations, guidelines, policies, orders, rulings, judgments and other pronouncements having the effect of laws of the applicable jurisdiction or jurisdictions, as the case may be, enacted, issued or promulgated by a governmental authority, as may be prevalent at the relevant time;
  1. Losses” shall have the meaning ascribed to the term in Clause 1;
  1. Loyalie App” shall have the meaning ascribed to the term in Recital (i) herein;
  1. Loyalie Website” shall have the meaning ascribed to the term in Recital (i) herein;
  1. Loyalty Program” shall mean any benefits provided to the present and future customers of the Real Estate company through the Loyalie App, the Clone App and the Loyalie Website, including Prospective Customer Offers, Pre-Possession Offers and Existing Customer Offers;
  1. New Program Notice” shall have the meaning ascribed to the term in Clause 10(a);
  1. Person” shall mean an individual, an association, a corporation, a partnership, a joint venture, a trust, an unincorporated organisation, a joint stock company or other entity or organisation, a government or political subdivision or an agency or instrumentality thereof and/or any other legal entity (in each case, whether or not having separate legal personality);
  1. Pre-Possession Offers” shall mean offers available to customers before they have possession of their Property;
  1. Prospective Customer Offers” shall mean potential offers that could be made available to customers;
  1. Representatives” shall have the meaning ascribed to the term in Clause 1(a);

PART B – INTERPRETATION

  1. References to ‘Recitals’, ‘Clauses’, ‘Schedules’ and ‘Paragraphs’ in Schedules are references respectively to the recitals, clauses, schedules and paragraphs in the schedules to this Agreement;
  2. Words importing the singular include the plural and vice versa;
  3. Words denoting one gender shall include all genders;
  4. The words “include” and “including” shall be construed without limitation;
  5. A reference to any document (including this Agreement) is to that document as amended, consolidated, supplemented, novated or replaced from time to time;
  6. Unless otherwise expressly stated, the words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Clause or other sub-division;
  7. References to writing include any mode of reproducing words in a legible and non-transitory form, except facsimile transmission;
  8. Words and abbreviations, which have well known inter alia medical, biological, technical or trade/ commercial meanings, are used in this Agreement in accordance with such meanings;
  9. Reference to an “amendment” includes a supplement, modification, novation, replacement or re-enactment and “amended” is to be construed accordingly;
  10. Unless the contrary is expressly stated, no Clause in this Agreement limits the extent or application of another Clause;
  11. References to knowledge, information, belief or awareness of any Person shall be deemed to include such knowledge, information, belief or awareness that such Person would have if such Person has made due and careful enquiries as a person of ordinary prudence;
  12. If any provision in Part A of Schedule 1 is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
  13. The Recitals hereinabove form an integral part of this Agreement and shall be construed accordingly;
  14. Where any provision of this Agreement refers to materiality in any respect, the Company’s opinion regarding such materiality shall be final and binding on the Parties;
  15. Any reference to “mutual agreement” shall mean a mutual agreement in writing by the concerned Parties;
  16. Reference to “consent” or “approval” shall mean prior written consent/ approval; and
  17. No provisions of this Agreement shall be interpreted in favour of, or against, any Party by reason of the extent to which such Party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.

[remainder of the page intentionally left blank]

    Schedule 2

 

(To be filled in by client outlining the nature of services and incentives to be provided)