I. ACCEPTANCE OF TERMS
1. The website www.loyalie.com (hereinafter referred to as ‘Website’) and the IOS/Android applications ‘Loyalie’ (hereinafter collectively referred to as “Application” or “App”) are owned and operated by Loyalie IT-Solutions Private Limited, a company incorporated under the laws of India having its registered office at 238B AJC Bose Road, Kolkata 700020, West Bengal, India (“We”, “Us”, “Our”, ‘Company’). The Company also develops Developer-specific applications and/ or websites, similar to the App and the Website, pursuant to agreements executed between the Company and such Developer (“Clone App”).
3. In order to complete the registration process or use the Loyalie App, you must first agree to the Terms. You may accept this by:
(a) Clicking to accept or agree to the Terms, where the option is made available on the Loyalie App; or
(b) Actually using the Loyalie App.
4. If you do not agree to these Terms, please do not complete the registration process and/or use the Loyalie App.
5. If you have any questions with respect to this Agreement, please contact firstname.lastname@example.org.
II. DEFINITIONS AND INTERPRETATION
1. 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 Clause II.2 hereto. The rules of interpretation set out in Clause II.3 shall apply to this Agreement, unless the context requires otherwise or as is expressly specified otherwise.
(a) “Business Day” shall mean a day (other than a Saturday or Sunday) on which banks are open in Mumbai and Kolkata for carrying on the normal business of banks.
(b) “Company/ We/ Us/ Our” shall mean Loyalie IT-Solutions Private Limited and its successors in title and assigns;
(c) “Device” shall mean the device on which the Loyalie App is installed or being accessed or used, as the case may be.
(d) “Developer” shall mean any Person onboarded on the Loyalie App as a ‘developer’.
(e) “Claim Notice” shall have the meaning ascribed to the term in Clause XII.3(a) herein.
(f) “Clone App” shall have the meaning ascribed to the term in Clause I.2 herein.
(g) “Content” shall have the meaning ascribed to the term in Clause X.1 herein.
(h) “Governmental Authority” means any national, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency, any statutory body or commission or any non-governmental regulatory or administrative authority, body or other organisation to the extent that the rules, regulations and standards, requirements, procedures or orders of such authority, body or other organisation have the force of Law or any court, tribunal, arbitral or judicial body; each of the aforementioned in India.
(i) “Indemnified Party” shall have the meaning ascribed to the term in Clause XII.1 herein.
(j) “Indemnifying Party” shall have the meaning ascribed to the term in Clause XII.1 herein.
(k) “Information” shall have the meaning ascribed to the term in Clause III.6 herein.
(l) “Laws” 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 in India;
(m) “Losses” shall have the meaning ascribed to the term in Clause XII.1 herein.
(n) “Loyalie App” shall have the meaning ascribed to the term in Clause I.2 herein.
(o) “Loyalie Login” shall have the meaning ascribed to the term in Clause III.3 herein.
(p) “Loyalty Program” shall have the meaning ascribed to the term in Clause IV.1(b)(i) herein.
(q) “Parties” shall mean: (i) the Company; and (ii) the User.
(r) “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);
(s) “Potential Customer” shall have the meaning ascribed to the term in Clause IV.1(a)(i) herein.
(u) “Program” shall have the meaning ascribed to the term in Clause IV herein.
(v) “Real Estate Agent” shall mean: (i) a “real estate agent” as defined under the Real Estate (Regulation and Development) Act, 2016; and (ii) any Person offering services similar to a “real estate agent”.
(w) “Referral” shall have the meaning ascribed to the term in Clause IV.1(a)(i) herein.
(x) “Referral Fee” shall have the meaning ascribed to the term in Clause IV.1(a)(iii) herein.
(y) “Referral Program” shall have the meaning ascribed to the term in Clause IV.1(a)(i) herein.
(z) “Third Party” shall mean and refer to any Person apart from the User, the Company, the Vendor and the Developer.
(aa) “Vendor” shall mean any Person offering any kind of benefits under a Loyalty Program.
(bb) “Updates” shall have the meaning ascribed to the term in Clause VII herein.
(cc) “User/ You/ Your/ Yourself” shall mean any Person registering on the Loyalie App, as per Clause III
(a) All references in this Agreement to statutory provisions shall be construed as meaning and including references to:
(i) any modification, consolidation or re-enactment of a statute in force as on the relevant date;
(ii) all delegated legislation made pursuant to a statutory provision;
(iii) any statutory provisions of which these statutory provisions are a consolidation, re-enactment or modification; and
(iv) notifications, circulars, rules, regulations, orders and other subordinate legislations issued pursuant to the statute.
(b) Words importing the singular include the plural and vice versa;
(c) Words denoting one gender shall include all genders;
(d) The words “include” and “including” shall be construed without limitation;
(e) A reference to any document (including this Agreement) is to that document as amended, consolidated, supplemented, novated or replaced from time to time;
(f) References to writing include any mode of reproducing words in a legible and non-transitory form, except facsimile transmission;
(g) 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;
(h) 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;
(i) Reference to an “amendment” includes a supplement, modification, novation, replacement or re-enactment and “amended” is to be construed accordingly;
(j) Unless the contrary is expressly stated, no Clause in this Agreement limits the extent or application of another Clause;
(k) 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;
(l) Any reference to “mutual agreement” shall mean a mutual agreement in writing by the concerned parties;
(m) Reference to “consent” or “approval” shall mean prior written consent/approval; and
(n) 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.
III. ELIGIBILITY AND REGISTRATION
1. Eligibility: You hereby represent and warrant that you are competent to contract and have attained majority in accordance with the Law that is applicable to you, and you are of sound mind and are not disqualified from contracting by any Law to which you are subject.
2. Compliance with Law: You are in compliance with all Laws, as may be required for registration on, access and/or use of the Loyalie App, including, but not limited to, obtaining any necessary licences and registration as may be required under Law. You agree to use the Loyalie App only in compliance with these Terms and applicable Law, and in a manner that does not violate the Company’s legal rights or those of any Third Parties. You agree that, if any further licences, registrations or approvals may be required to use the Loyalie App/ Programs, you will procure the same.
3. Loyalie Login: For the purpose of using the Loyalie App, you must log-in to the Loyalie App with the log-in credentials provided to you by a Developer or generated by the Company based on the contact details provided by the Developer, or otherwise generated by the Company at its discretion (“Loyalie Login”). The Loyalie Login is the property of the Company and can be changed by the Company at its sole discretion.
4. Unauthorised Log-in: Please note that if log-in credentials have been provided to you in any other manner, or by any other Person: (a) you are not authorised to register on or use the Loyalie App with such log-in credentials, neither are you entitled to any benefits accruing from the Loyalie App; (b) you are required to inform the Company immediately; and (c) you are required to delete any account registered with such log-in credentials.
5. Customers: Please note that only the Person in whose name a unit in the project of a Developer has been purchased shall receive a Loyalie Login. However, a Loyalie Login may be provided to other Persons, at the sole discretion of the Company.
6. Information: On logging in to the Loyalie App with the Loyalie Login, you shall be required to, provide basic information such as your name, gender, date of birth, email address, contact number, city, state, country and any other information required by the Company for availing the Programs (“Information”). A User may provide the Information by linking their Loyalie Login with social media platforms such as Facebook, Google or Twitter; in which case information provided on such social media would be used by the Loyalie App to get the necessary Information. Linking the Loyalie Login with such social media platforms would also connect the App with the social media platform. The use of the Loyalie App is subject to the Information provided by the User being true, correct and complete and not misleading, failing which the Company may forthwith, and at its sole discretion:
(a) temporarily or permanently suspend the User’s Loyalie Login;
(b) withdraw all benefits accruing from the Loyalie App to such User (and all other Persons using the Loyalie Login);
(c) cancel any Referrals made by such User; and/ or
(d) cancel any Referral Fee that such User may be entitled to.
Further, upon the occurrence of such an event, the Company shall have no liability to pay the Referral Fees.
7. Non-disclosure: The User shall not disclose and shall maintain in strict confidence his Loyalie Login and credentials, other than as mentioned in Clause III.5. If you know or suspect that someone else knows your Loyalie Login, you should notify us by contacting email@example.com immediately, failing which the Company may take steps against you as set out in Clause III.6(a) to Clause III.6(d). The Company shall not be held liable for any loss that may occur due to the unauthorised access by a Person with the Loyalie Login of a User.
1. The Loyalie App offers the following programs to its Users, who have registered as per Clause III:
(a) Referral Programs
(i) Referral: A User may, in good faith, refer a Person (“Potential Customer”) who is interested in purchasing units in a project of a Developer, by providing the details of such Person (“Referral”) on the “Refer Now” section of the Loyalie App or by communicating the same on the telephone number provided therein (“Referral Program”). The User shall, prior to making the Referral, ensure that the Potential Customer:
(A) is competent to contract as per applicable Law;
(B) has provided his consent to the User making the Referral and to be contacted by the Company, Developer or any Third Party for the purposes of the aforesaid Referral and sale, and for participating in connected activities; and
(C) has a bona fide interest in purchasing a unit of the Developer.
(ii) Binding Referral Contract: Completing a Referral under the Referral Program as aforesaid would constitute a binding contract between you and the Company, whereby the Company agrees to accept such Referral made by you, and you agree to make such Referral to the Company, in consideration of the Referral Fee that may be paid to you, subject to these Terms.
(iii) Referral Fee: Within one month of the Company receiving payment from the Developer, for a successful sale of a unit in the project of the Developer to the Potential Customer, in terms of the Referral, you will be paid a referral fee in the manner set out herein (“Referral Fee”):
(A) The amount of the Referral Fee would be specified upon completion of a Referral. Please note that the Referral Fee may be different for each project.
(B) You will be intimated by the Company, upon becoming eligible for the Referral Fee, on the contact details provided by you on the Loyalie App.
(C) Upon a request made by the Company, you shall provide the necessary details for the purpose of payment of the Referral Fee. Payment of the Referral Fee shall be subject to the true and correct details being provided by the User within 45 days of intimation by the Company. If the information is not provided within the aforementioned period, the right of the User to receive the Referral Fee shall lapse and the Company shall have no obligation to make the payment of such Referral Fee.
(D) You shall be paid the Referral Fee in the mode and manner determined by the Company.
(iv) No Third Parties: The Referral Program is managed and operated by the Company, and no Third Parties are involved in this process, except as may be used by the Developer for the process of sale of units to a Potential Customer.
(b) Loyalty Programs:
(i) Offers: Under this program, you may avail the offers and schemes provided by various Vendors, available to you on the Loyalie App, in the manner set out under this Clause IV.1(b)(“Loyalty Program”).
(ii) Run by Vendors: You acknowledge that the Loyalie App only connects the User and the Vendor for the purposes of the Loyalty Program and that the Vendor has the sole responsibility of managing and implementing Loyalty Programs. The authenticity and fulfilment of the Loyalty Programs is the sole responsibility of the Vendor, and the Company shall not be held liable for any misrepresentation of the details of the Loyalty Programs or non-fulfilment of the Loyalty Programs available on the Loyalie App.
(iii) Conditions for use of Loyalty Program
(A) You may avail of a Loyalty Program only in accordance with the procedure specified in the specific Loyalty Program by the Vendor.
(B) You shall provide identification such as Aadhaar Card, driving licence or any other similar identification, as required by the Vendor at the time of availing a Loyalty Program.
(C) The Loyalty Programs are subject to any additional terms and conditions as may be stipulated by the Vendor from time-to-time.
(The Referral Program and the Loyalty Programs shall together be referred to as the “Programs”)
1. Communication: By using the Loyalie App, it is deemed that you have consented to receiving communications including telephonic calls, SMSs and/or emails from us at any time we deem fit. Such communications shall be sent to the contact details provided on the Loyalie App. Such communications by the Company are for purposes that inter alia include feedback, clarification calls, marketing calls and promotional calls. In case you wish to stop receiving communications from the Company (except for purposes of clarifications, support or feedback or for making payment of the Referral Fee), you may do so by sending an email to firstname.lastname@example.org.
1. As of now, the use of the Loyalie App is free of cost. However, the Company reserves the right to amend this no-fee policy and charge Users for downloading, installing and using the Loyalie App or any part thereof. In the event of such change in policy, Users shall be intimated of the same based on the contact details provided on the Loyalie App. Such change shall be effective as soon as Users have been intimated. Subsequent to such a change in policy, it shall be the choice of the User whether or not to continue using the Loyalie App. Continued usage of the Loyalie App shall constitute consent to pay the aforementioned fees.
1. From time to time, the Application may automatically check the version of the Application installed on the Device and, if applicable, download and install updates for the Application (“Updates”). Updates may contain, without limitation to, bug fixes, patches, enhanced functionality, plug-ins and new versions of the Application. By installing the Application, you authorise the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the Application shall be governed by this Agreement, as amended by any terms and conditions that may be provided with Updates. Please note that receipt of any benefits accruing from the Loyalie App shall be subject to use of a fully updated Application.
VIII. USER’S OBLIGATION
1. The User undertakes and covenants as follows:
(a) Accuracy of Information: You agree to ensure that the Information provided by you on the Loyalie App is valid and accurate.
(b) Non-Circumvention: You agree that you will not, with respect to the Referral Program, circumvent the Company and/or directly or indirectly make a referral regarding the Potential Customer to the concerned Developer. Also, in connection with a Referral or potential referral, if you are contacted by a Developer, its representatives or any Person affiliated with a Developer, you shall:
(i) terminate the discussion forthwith;
(ii) forthwith, but in any case, within 1 (day) intimate the Company of such contact made by the Developer;
(iii) refuse any payment offered;
(iv) not continue the discussion with such Persons; and
(v) if you receive any payment pursuant to such discussions, you shall hold it in trust for the Company’s benefit and return all such amounts to the Company within 5 (five) days of receipt of any part thereof. In case you have not returned such amount to the Company within the aforementioned period, you shall be liable to pay interest of 18% (eighteen percent) on such amount, from the expiry of the aforementioned period of 5 (five) days till actual payment to the Company.
(c) Real Estate Agent: In consideration of the Reward Fee and Programs, the User 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 the business of a Real Estate Agent.
(d) Other Covenants: You undertake not to:
(i) cut, copy, distribute, modify, recreate, reverse engineer, distribute, disseminate, post, publish or create derivative works from, transfer, or sell any information or software obtained from the Loyalie App. For the avoidance of doubt, it is clarified that unlimited or wholesale reproduction, copying of the content for commercial or non-commercial purposes and unwarranted modification of data and information within the content of the Loyalie App is not permitted. Should you want to engage in one or more such actions, prior written permission from the Company must be obtained;
(ii) access (or attempt to access) the Loyalie App and/or the materials by any means other than through the interface that is provided by the Loyalie App. The use of any deep-link, proxy, virtual private network, robot, spider or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of Loyalie App or Content, or in any way reproduce or circumvent the navigational structure or presentation of the Loyalie App, materials or any Content, to obtain or attempt to obtain any materials, documents or information through any means not specifically made available through the Loyalie App is prohibited;
(iii) use the Loyalie App in any manner that may impair, overburden, damage, disable or otherwise compromise: (i) the Programs; (ii) any other Person’s use and enjoyment of the Programs; and/or (iii) the services and products of any Third Party (including, without limitation to, the Device);
(iv) use the Loyalie App or materials for any unlawful purposes or to conduct any unlawful activity, including, but not limited to, fraud, embezzlement, money laundering or identity theft;
(v) use the Loyalie App to abuse, harass, threaten, defame, disillusion, erode, abrogate, demean or otherwise violate the legal rights of others;
(vi) engage in any activity that interferes with or disrupts access to the Loyalie App (or the servers and networks which are connected to the Loyalie App);
(vii) upload or distribute files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Loyalie App or another’s Device;
(viii) download any file posted on the Loyalie App that you know, or reasonably should know, cannot be distributed in such manner under applicable Law or any contract binding on you;
(ix) probe, scan or test the vulnerability of the Loyalie App or any connected network, nor breach the security or authentication measures on the Loyalie App. You may not reverse look-up, trace or seek to trace any information on any other user of, or visitor to, the Loyalie App, or exploit the Loyalie App or service or information made available or offered by or through the Loyalie App, in any way whether or not the purpose is to reveal any information, including, but not limited to, personal identification information, other than your own information, as provided for by the Application;
(x) disrupt or interfere with the security of, or otherwise cause harm to, the Loyalie App, systems resources, servers or networks connected to or accessible through the Loyalie App or any affiliated or linked applications;
(xi) use the Loyalie App or any material or Content for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of the Company or any Third Parties;
(xii) violate any applicable Laws for the time being in force within or outside your home country;
(xiii) violate any code of conduct or other guidelines, which may be applicable for the use of the Loyalie App;
(xiv) threaten the unity, integrity, defence, security or sovereignty of your home country, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation; and
(xv) disseminate information through the Loyalie App that is false, inaccurate, misleading, unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, otherwise objectionable material or transmitting material that encourages conduct that constitutes a criminal offence, or violating any applicable Laws for the time being in force in or outside your home country;
(e) Representations: You represent and warrant to the Company that, as of the date of acceptance of these Terms as per Clause I.3:
(i) you have the full power and authority to enter into this Agreement and to perform the transactions contemplated hereby;
(ii) you are not, and have not been, a Real Estate Agent;
(iii) the acceptance of these Terms by you will not:
(A) require you to obtain any consent, approval or action of, any Government Authority or any other Person pursuant to any instrument, contract or other agreement to which you are a party or by which you are bound, other than such consents, approvals, filings specifically contemplated herein;
(B) conflict with or result in (including with notice or lapse of time or both) any breach or violation of any of the terms and conditions of any instrument, contract or other arrangement to which you are a party or by which you are bound; and
(C) violate any Law binding upon you; and
(iv) all representations, warranties, information, documents or statements in this Agreement are true, accurate, complete and correct in all respects. The representations, warranties and information in this Agreement does not omit to state any fact necessary in order to make the representations, warranties and information contained in this Agreement not misleading;
(f) You undertake to notify the Company in writing promptly if you become aware of any fact, matter or circumstance (whether existing on or before the acceptance of the Terms or arising afterwards) which would cause any of the representations and warranties given by you hereunder to become untrue or inaccurate or misleading in any aspect; and
(g) You acknowledge and agree that by accessing or using the Loyalie App, you may be exposed to content from other Users or Third Parties that you may consider offensive, indecent or otherwise objectionable. We disclaim all liabilities arising in relation to such offensive content on the Loyalie App. Further, you shall report such offensive content.
IX. ACTIONS UNDERTAKEN BY THE APPLICATION ON YOUR DEVICE:
1. Upon download and installation of the Loyalie App on the Device, you shall grant the following permissions through your operating system, if necessary, to:
(a) To read from, write on, modify and delete data pertaining to the Loyalie App on the Device’s hard disk and/or external storage;
(b) To access information about networks, access networks including Wi-Fi networks, receive and send data through the network;
(c) To determine your approximate location from sources like, but not limited to, mobile towers and connected Wi-Fi networks;
(d) To determine your exact location from sources such as, but not limited to GPS;
(e) To access the model number, IMEI number and details about the operating system of the Device, as well as the phone number of the Device, if such device is a portable electronic device;
(f) To retrieve information about other applications and services running on the Device;
(g) To detect when the Device had been switched off and switched on for the purpose of sending notification/ push notifications; and
(h) To access and change the display and sound settings of the Device.
X. INTELLECTUAL PROPERTY
1. Intellectual Property to belong to the Company: You acknowledge that the Loyalie App 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. You agree and acknowledge that all information, content, services and software displayed on, transmitted through, or used in connection with the Loyalie App, including for example news articles, reviews, directories, guides, text, photographs, images, illustrations, audio clips, video, html, source and object code, trademarks, logos, and the like (hereinafter, collectively referred to as the “Content”), as well as its selection and arrangement, shall always belong and remain the property of the Company. You may use the Content only through the Loyalie App, and solely for your personal, non-commercial use. You shall protect the Company’s contractual, statutory and rights under Law in the Loyalie App with the same degree of care used to protect your own proprietary rights. You agree to notify the Company by sending an email to email@example.com. promptly upon becoming aware of any unauthorized access or use by any Person or of any claim that the Loyalie App infringes upon any copyright, trademark, or other contractual, statutory or rights under Law.
2. Use of Company’s Intellectual Property: You may not, republish any portion of the Content on any internet, intranet or extranet site or incorporate the Content in any database, compilation, archive or cache. You may not distribute any Content to others, whether or not for payment or other consideration, and you may not scrape, modify, copy, frame, cache, reproduce, sell, publish, transmit, display or otherwise use any portion of the Content. You agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Loyalie App, not to insert any code or product or manipulate the content of the Loyalie App in any way that affects any User’s experience, and not to use any data mining, data gathering or extraction method.
3. Information: You represent, warrant and covenant that, information and content provided by you, including, but not limited to, information during registration:
(a) is owned by you, and that you otherwise have all necessary rights to such content and the rights to use it, and for its use as per these Terms;
(b) is true, accurate, current and complete, and not misleading, and does not violate these Terms; and
(c) shall not cause injury to any Person.
4. Use of Information and Content of Users: For all information and content owned by you, as mentioned the Clause X.3, above, you grant us, a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, archive, store, distribute, reproduce and create derivative works from such information, in any form, media, software or technology of any kind now existing or developed in the future. Without limiting the generality of the previous sentence, you authorize us to share the information across all our affiliated websites or applications, to include the information in a searchable format accessible by users of the Loyalie App, and to use your name and any other information in connection with its use of the material you provide. You also grant the right to use any material, information, ideas, concepts, know-how or techniques contained in any communication you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products using such information. You acknowledge that the use of the Loyalie App as per these Terms is sufficient consideration for granting the rights as contemplated herein, and all rights in this Clause are granted without the need for additional compensation of any sort to you.
XI. USE OF LOYALIE APP
1. Quality of Loyalie App: We make no promises that the Loyalie App will meet your requirements. We cannot guarantee that the Loyalie App will be fault-free. If you perceive any purported fault occurs with the Loyalie App, you should report it to firstname.lastname@example.org.
2. Restriction of Access: Your access to the Loyalie App may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services.
1. The User (“Indemnifying Party”) hereby agrees to indemnify and hold harmless the Company, 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:
(a) any inaccuracy in or any misrepresentation or breach of any of the representations and warranties by you under this Agreement;
(b) any breach or failure by you to perform any covenant, undertaking or obligation under this Agreement;
(c) any fraud, misconduct and/ or negligence on your part;
(d) the use of the Loyalie Login provided to you, or your use of the Loyalie App; and/ or
2. 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, are intended third party beneficiaries of this Clause, and notwithstanding anything to the contrary in this Agreement, the Indemnified Parties shall be entitled to enforce their indemnity right hereunder.
3. Indemnification Procedure
(a) An 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 the Company and/or any Indemnified Party with respect to which such Indemnified Party seeks indemnification. 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.
(b) The Indemnifying Parties shall, within 5 (five) days of receipt of the Claim Notice: (i) pay to the Indemnified Party(ies) the amounts set out in the Claim Notice; and (ii) provide written notice to the Indemnified Party that the 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 XIX (Dispute Resolution).
4. Notwithstanding anything stated in this Agreement, the Indemnified Parties shall each be entitled to recover the amount of any Losses incurred or suffered by them, for which the Indemnified Parties are entitled to indemnification hereunder, by setting-off the amount of Loss against any other amounts whatsoever due or payable by the Company to the Indemnifying Party.
1. We may modify, replace, refuse access to, suspend or discontinue the Programs, partially or entirely, or add, change and modify prices for all or part of the Programs for you or for all Users at any time and in our sole discretion. These changes shall become effective upon [providing written notice thereof to you or by displaying the same on the Loyalie App. We further reserve the right to withhold, remove and or discard any content available as part of your account, with or without notice.
2. Further, we reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time, effective upon the date of giving Users notice of the same, as mentioned in the Clause XIII.1, above.
3. The User and Company, both understand that there may be instances of difficulty in accessing or receiving written notices. We are not responsible if any email notice gets caught by your SPAM folder, or if you do not see the email, or if you have given us an incorrect email id or if for any other reason you do not receive the email notice. Therefore, we encourage you to frequently open the Loyalie App to monitor any changes. Your continued use of or access to the Loyalie App following the posting of any changes to this Agreement constitutes acceptance of those changes. We may also, in the future, offer new services and/ or features through the Loyalie App. Such new features and/ or services shall be subject to the terms and conditions of this Agreement.
XIV. GEOGRAPHICAL EXTENT
1. The Loyalie App can be used in India only. We make no representation that the Programs, materials or Content available through the Loyalie App are appropriate or available for use outside India.
2. If you access or use the Loyalie App from a country or location apart from India, you are solely responsible for compliance with necessary Laws for use of the Loyalie App at such location.
1. Termination by Company: We may terminate this Agreement, suspend and/or cancel your Loyalie Login and/ or your use of the Loyalie App, immediately, at our sole discretion, without cause, forthwith. Without prejudice to the above, the Company may terminate this Agreement forthwith, by providing written notice to you, in the following circumstances:
(a) occurrence of any of the events mentioned in Clause XII.1(a) to XII.1(e); and/ or
(b) the Company seizing its business or the Loyalie App being taken offline or being removed or suspended from the App Store for iOS and/ or Google Play for Android.
2. Consequences of Termination:
(a) You agree that any termination of your access to the Loyalie App may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and/ or bar any further access to your account or the Loyalie App.
(b) Even after your account is deleted, we (and any social media platforms or affiliated websites or applications) may, in our sole respective discretion, retain all data collected pursuant to your use of the Loyalie App. Further, you agree that we shall not be liable to you or any Person for the discontinuation or termination of your access to the Loyalie App.
XVI. DISCLAIMER OF LIABILITY
1. Limitation of Liability: The Company shall not be responsible for any damage suffered by the Users or any other Persons from use of the Loyalie App. This includes loss of revenue/data resulting from delays, pricing issues or service interruptions as may occur because of any act/ omission. This disclaimer of liability also applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortuous behavior, negligence, or under any other cause of action.
2. Liability of Vendors: It is the sole discretion of the User to select the Loyalty Programs from the Vendors, the Company shall not be responsible for service related problems or any other issue that may arise to the User while availing services of the Vendors. Any Loyalty Programs provided by the Vendor are at the sole discretion of the such Vendor and the Company shall not be responsible for such Loyalty Programs. The Loyalie App only connects the User and the Vendor and claims no responsibility for the damages or default in service the User might face while availing the benefits accruing from the Loyalty Program. The Company expressly disclaims all liabilities arising out of the actions of the Vendor, their agents and assigns.
XVIII. GOVERNING LAW AND JURISDICTION
1. This Agreement shall be governed by and construed in accordance with the Laws of India.
2. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the courts in Mumbai.
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 the Company 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.
2. Relation between the Parties
This Agreement shall not be construed to constitute a partnership or joint venture between the User and Company. Neither the User or the Company shall have any right to obligate or bind the other in any manner whatsoever, other than as stipulated under the terms of this Agreement, and nothing contained in this Agreement shall give any rights of any kind to any Persons, unless expressly specified otherwise herein.
3. Entire Agreement
This Agreement constitutes the entire agreement between the User and the Company with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof.
Any notice given by any of the Parties hereto to the other 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 Parties, in writing, at least 7 (seven) Business 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.
(a) If to the Company
Nakuleshwar Bhattacharjee Lane,
Near Kalighat Tram Depot,
Kolkata – 700026,
West Bengal, India.
Attention: Mrs. Paridhi Shah
(b) If to the User, all notices shall be sent based on the information provided by the User at the time of registration on the Loyalie App.
The User 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 User.
6. 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.
7. Without prejudice
The User agrees that the rights and remedies of the Company hereunder are in addition to and without prejudice to its rights at Law, equity or under any other contract or arrangement.
8. 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.
Any payments under this Agreement shall be made subject to any holdbacks, deductions and/ or withholdings, including any taxes, as may be required to be deducted at source, as per applicable Law or contract.
Clause XII (Indemnification), Clause XVIII (Governing Law and Jurisdiction) and this Clause XIX (Miscellaneous) shall survive the termination of this Agreement.