42 End User Software License Agreement

Please read this software license agreement ("Licence") carefully before using the software. By using the software, you (the “User”) acknowledge your assent to the following terms and conditions of use without limitation or qualification. These conditions may be revised at any time by updating the posting of the terms and conditions on the 42 Loyalty.ie website. You should therefore periodically visit this page to review the then – current conditions to which you are bound if you do not agree to the terms of this license, do not use the software.

42 Is the Answer Limited (“42”) of TRC House, Dundrum Road, Dublin 14 develops, maintains, and licenses access to, a web-based loyalty software for business.

User wishes to use the 42 application and to maintain a database of their customers and track customer spends. User has the option to award points for customer patronage and communicate with their customers via text messages email or various documents and obtain such related services, and 42 desires to provide such services to User; and;

In consideration of the foregoing and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, 42 and the User agree as follows:

1. Definitions

1.1 Definitions. For purposes of this Agreement, the definitions set forth below shall be applicable:

"Authorized User" means an individual who is an employee, agent or contractor of User who is acting within the scope of a formal employment or agency relationship and who agrees to be bound by the terms of this Licence.

“User Subscription Agreement” means the agreement between 42 and the User in the form annexed to Schedule 2 hereto.

“Effective Date” means the date upon which payment is made by the User for the 42 application or such other date as the parties may mutually agree.

"Front End Code" means the user interface display and usability platform. This includes but is not limited to the layout, colour scheme, HTML pages and source code etc.

"Back End Code" means the 42 application specific source code. This includes but is not limited to the database schema, field definitions, table relationships, marketing automation, work flow management, application methodology and interface coding etc.

“42 application” means the 42 loyalty software specified in the Schedule 1 hereto.

“Loyalty.ie website” means the website operated by 42 for the benefit of Users and their customers. ]

“Services” means the services provided by 42 to Customer.

“User” means any party who uses the 42 application pursuant to the terms and conditions of this Licence.

2. Ownership and Use

2.1 Grant of Licence

Subject to the terms and conditions of this Licence, 42 hereby grants to user and user hereby accepts a nonexclusive, nontransferable license to establish online access to the 42 application to perform contact management, and other related business functions as the software is designed to perform. User shall use the 42 application for its own business purposes only. User may not decompile, reverse engineer, disassemble, or otherwise reduce the 42 application. User may not modify, sell, rent, transfer, resell for profit, distribute or create derivative works based upon the 42 application or any part thereof. User shall not permit any third party to use the 42 application in any way whatsoever. User hereby acknowledges that it is licensed to use the 42 application strictly in accordance with these express terms and conditions and not further or otherwise.

2.2 Title.

42 shall retain all right, title, and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights of whatever nature) in and to the 42 application, including any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation, etc. Except for the license granted pursuant to this Licence, User shall not acquire any interest in the 42 application or any other services or materials, or any copies or portions thereof, provided by 42 pursuant to this Licence. User shall notify 42 immediately if User becomes aware of any unauthorized use of the whole or any part of the 42 application by any person.

2.3 Intellectual property ownership and restrictions to product use.

42 shall retain all rights to proprietary application development, business and technical methodologies, implementation, business processes and all other aspects of 42 business, application(s) and services. Under no circumstances, shall User be permitted to use any Front End Code or Back End Code to their advantage (or) to the advantage of any third party outside of the terms and conditions of this Agreement. The technology and business methodologies shall remain the property of 42. Any technology or business replication of any aspect of the 42 application is strictly prohibited.

2.4 Usage Thresholds.

User agrees to the following thresholds:

2.4.1 Professional:

Maximum List Size: 500,000
Users Included with Subscription: 5
Emails Included per month: 250,000

2.4.2 Deluxe:
Maximum List Size: 100,000

2.4.3 Standard:
Maximum List Size: 10,000

Exceeding the established usage may result in automatic upgrade to the next 42 Edition or termination of the Licence.

3. Fees

3.1 Fees.

In consideration of the license granted pursuant to Section 2.1, and for the Services, User shall pay 42 the licensing, setup and implementation fees (“the Fees”) as specified on the User’s Subscription Agreement. 42 shall invoice User for the Fees immediately upon acceptance of this Licence by User. Thereafter, 42 shall invoice User on a pre-paid monthly basis for monthly membership charges. All monthly membership charges and Fees shall be due and payable to 42 or their appointed agent immediately upon the of the date of each invoice. All payments hereunder shall be made in Euros. Any monthly membership charges or Fees not paid when due shall be subject to interest on such sum on a day to day basis (as well after as before any judgment) from the due date to the date of payment (both dates inclusive) at the rate of 3% above the Base Rate of AIB Bank Plc from time to time in force.

4. Confidentiality

4.1 User agrees that any and all materials, documentation and information pertaining to the 42 application and the Services (referred to herein collectively as the "42 Confidential Information") is the confidential property of 42. User, including it’s employees, officers, directors and agents, (collectively, the "Receiving Party") shall hold in confidence all 42 Confidential Information and shall not disclose or distribute the 42 Confidential Information, or any portion thereof, in any form or format to any person except on a strict "need to know" basis for the purpose of performance of this Licence, or as required by valid legal process. User agrees it shall not copy, alter, decompile, disassemble, reverse engineer, or otherwise modify (except with 42's prior written consent) or directly or indirectly disclose any 42 Confidential Information. 42 Confidential Information under this Section 4 shall not include information that: (i) is or has become publicly available without restriction through no fault of the Receiving Party; or (ii) has been received without restriction from a third party lawfully in possession of such information. User shall promptly notify 42 if it becomes aware of any breach of confidence by any person to whom User divulges all or any part of the 42 Confidential Information and shall give 42 all reasonable assistance in connection with any proceedings which 42 may institute against such person for breach of confidence. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Licence. Nothing in this clause 4 shall prevent 42 from exploiting inventions or software that it develops during the course of this Licene.

4.2 User Data

User acknowledges that use of the 42 application and Loyalty.ie website will involve access to and the collection of customers “personal information”. This means any information that can be used to identify or contact a specific individual, such as an email address. User agrees to be bound by and to observe the Loyalty.ie Privacy Policy contained on the Loyalty.ie website and to bring the Privacy policy to the attention of all of its customers.

Term & Termination

5.1 Term.

This Licence shall begin on the Effective Date and shall continue in force in accordance with the date(s) set out in the User Subscription Agreement unless terminated in accordance with the terms of this Section 5.

5.2 Termination

Either party may terminate this Licence by giving 14 days prior written notice to the other. This Licence shall automatically determine upon the expiry of the date set out in the User Subscription Agreement.

5.3 Breach

42 may terminate this Licence forthwith on giving notice in writing to User if:
i) User commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 20 days after the receipt of a request in writing from 42 so to do, to remedy the breach (such request to contain a warning of 42’s intention to terminate);or
ii) if User ceases or threatens to cease business, makes or offers to make any arrangement or composition with its creditors or commits an act of bankruptcy, or if a receiving order is made against it, or if any resolution or petition is passed or made for its winding up, or if a receiver, examiner or liquidator is appointed over any business, assets or undertakings of User. .

5.4 Fees; Return of User Data

In the event of the termination or expiry of this Licence, all Fees due and owing to 42 must be paid immediately in full. Upon payment of all Fees 42 will return all customer data to User within a period of 30 days..

.
Warranties/limitation of liability/indemnity

6.1 Disclaimer of warranties

This Licence is an agreement for services. Notwithstanding the foregoing, 42 specifically disclaims:
All warranties express or implied with regard to the 42 application, the services, including, without limitation a warranty of satisfactory quality, fitness for a particular purpose and non-infringement. 42 shall not be responsible for the maintenance, accuracy or good running of any version of the 42 application or for any defect or error in the 42 application. .

6.2 Limitation of liability

42 shall not be liable for any indirect, special, incidental, punitive, or consequential damages, including, but not limited to loss of data, loss of business, loss of profits or other loss arising out of or resulting from this Licence whether based on breach of contract, tort (including negligence), product liability or otherwise.42 makes no warranties or representations as to the accuracy of any information appearing on the Loyalty.ie website or elsewhere.

Notwithstanding the foregoing 42's maximum liability under this Agreement shall not exceed the average of 6 months Fees payable over the term of this Licence.

6.3 User Warranty.

User represents and warrants that it shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable laws and regulations. User shall indemnify and hold 42 harmless from and against any and all damages, costs, losses, claims, causes of action and lawsuits and expenses, including reasonable solicitors' fees, relating to breach of the aforementioned representation and warranty or caused by any negligent act or omission or willful misconduct of User its employees, agents or sub-contractors.

General provisions

7.1 Assignment

User shall not assign its rights or duties under this Licence without the prior written consent of 42. This Licence shall inure to the benefit of the authorized successors and assigns of the parties.

7.2 Independent Contractor

42 is an independent contractor, and this Licence does not in any way create the relationship of principal and agent, franchisee, joint venture, or partnership between the parties. Neither party shall be liable for any debts or obligations of the other.

7.3 Entire Agreement

This Licence contains the entire understanding between the parties and supersedes any prior verbal or written agreement between the parties with respect to the subject matter hereof.

7.4 Governing Law.

This Licence shall be governed by the Laws of Ireland and the High Court of Ireland shall have exclusive jurisdiction over all disputes.

7.5 Force Majeure

Neither party hereto shall be in default hereunder by reason of its delay or failure to perform any of its obligations hereunder for any event, circumstance, or cause beyond its control such as, but not limited to, acts of God, strikes, lock-outs, general governmental orders or restrictions, war, threat of war, hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake, or flood. The performance of this Licence shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Licence.

7.6 Invalidity; Waivers

If any provision or portion of this Licence is held invalid, illegal, void or unenforceable as it appears in this Licence by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Licence shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.

 

7.7 Survival of Terms

Notwithstanding the expiration or earlier termination of this Licence for any reason, the provisions of Articles 4, 6, 7 and Sections 2.2 and 2.3 of this Licence shall remain in full force and effect.

7.8 Data Protection and Data transmission

42 may collect, hold, control, use and transmit data obtained from and about User and its customers in the course of this Licence and through use of the Loyalty.ie website. By accepting the terms and conditions contained in this Licence User agrees to such data being used and further agrees that it may be transmitted to others. The parties hereby undertake to comply with the terms of the Data Protection Act 1988 (as amended) insofar as the same relate to the provisions of this Agreement.

7.9 Headings, Counterparts

Paragraph headings used herein are for convenience purposes only and are not intended to be, nor shall they be, used as an aid in interpretation.

 

 

 

SCHEDULE 1
 

42 APPLICATION

42 owns and authors the Loyalty.ie website. This website is subscription based software service that enables Users to create a database of their customers to record their sales data and communicate with them via text message, email and or other documents.

 

 

 

 

 

 

 

SCHEDULE
PART 2

USER SUBSCRIPTION AGREEMENT

User Name:

Address details:

Terms of Service:
Your Account:
Commencement date:
In order to open an "Account" on LOYALTY.IE, you must (i) agree to these Terms of Service, (ii) provide a valid email address, and (iii) provide any other information required by Loyalty.ie during the registration process. You will update this information to maintain its accuracy during the term of service. You are responsible for maintaining the security of your account and password. Loyalty.ie cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are also responsible for all content that you may post on LOYALTY.IE ("Content") and activity that occurs under your Account (even if applicable when Content is posted by others who have accounts under your Account). Personal information submitted by you shall be subject to Loyalty.ie’s Privacy policy. Accounts registered by "bots" or other automated methods are not permitted.

License Grants & Restrictions
Loyalty.ie hereby grants you a non-exclusive, non-transferable, worldwide right to access and use LOYALTY.IE, solely with supported browsers through the Internet for your own internal purposes, subject to these Terms of Service. You may not permit LOYALTY.IE to be used by or for the benefit of unauthorized third parties. Nothing in the Terms of Service shall be construed to grant you any right to transfer or assign rights to access or use LOYALTY.IE. All rights not expressly granted to you are reserved by Loyalty.ie and its licensors. You shall not (i) modify or make derivative works based upon LOYALTY.IE; (ii) reverse engineer or access LOYALTY.IE in order to (a) build a competitive product or service, (b) build a product using similar features, functions or graphics of LOYALTY.IE, or (c) copy any features, functions or graphics of LOYALTY.IE. You further acknowledge and agree that, as between the parties, Loyalty.ie owns all right, title, and interest in and to LOYALTY.IE, including all intellectual property rights therein.
Your Responsibilities
You are responsible for all activity occurring under your accounts and are solely responsible for compliance with all applicable local, national and foreign laws, treaties and regulations relating to your use of LOYALTY.IE, including those related to the protection of intellectual property, data privacy, international communications and the transmission of technical or personal data.
You shall: (i) notify Loyalty.ie immediately of any unauthorised use of any password or account or any other known or suspected breach of security; and (ii) report to Loyalty.ie immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you.
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use LOYALTY.IE, including, without limitation, modems, hardware, server, software, Internet browsers operating system, networking, web servers, long distance and local telephone service, but excluding LOYALTY.IE itself (collectively, "Equipment"). You shall be responsible for ensuring that such Equipment is compatible with LOYALTY.IE. You shall also be responsible for the use, and maintaining the security, of the Equipment.
Impermissible Acts
As a condition to your use of LOYALTY.IE, you agree not to:
-upload, post, email, transmit or otherwise make available any information, materials or other content that is illegal, harmful, threatening, abusive, harassing, defamatory, obscene, pornographic, offensive, invades another's privacy, or promotes bigotry, racism, hatred for harm against any individual or group;
-impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
-phish, collect, upload, post, email, transmit or otherwise make available any login data and/or passwords for other web sites, software or services;
-phish, collect, upload, post, email, transmit or otherwise make available credit card information or other forms of financial data used for collecting payments;
-forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through LOYALTY.IE;
-upload, post, email, transmit or otherwise make available any information, materials or other content that infringes another's rights, including any intellectual property rights;
-upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation;
-upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
-use any manual or automated software, devices, or other processes to "crawl", "spider" or "screen scrape" any web pages contained in LOYALTY.IE;
-reverse engineer, decompile or disassemble any of the software used to provide LOYALTY.IE;
-reproduce, duplicate or copy or exploit any other portion of LOYALTY.IE, without the express written permission of Loyalty.ie;
-interfere with or disrupt LOYALTY.IE, or any servers or networks connected to LOYALTY.IE, or disobey any requirements, procedures, policies or regulations of networks connected to LOYALTY.IE;
-modify, adapt or hack LOYALTY.IE or falsely imply that some other site is associated with LOYALTY.IE or Loyalty.ie; or
-use LOYALTY.IE for any illegal or unauthorised purpose. You must not, in the use of LOYALTY.IE, violate any laws in your jurisdiction (including but not limited to copyright laws).
Indemnification
Loyalty.ie will indemnify all paying accounts against and hold them harmless from: (a) any claim by a third party that any part of LOYALTY.IE or its use, manufacture, sale, distribution, or reproduction infringes or misappropriates any copyrights, trade secrets, patents or other intellectual property; (b) any claim by a third party that this Terms of Service is in conflict, violation or breach of or with any contract, assignment, license, sublicense, security interest, or other obligation to which Loyalty.ie is a party or has knowledge; (c) any claim relating to any past, present or future use, licensing, sublicensing, distribution, marketing, disclosure or commercialization of any part of LOYALTY.IE by Loyalty.ie; and (d) any litigation, arbitration, judgments, awards, legal fees, liabilities, settlements, damages, losses and expenses relating to or arising from (a), (b) or (c) above.
Feedback
In the course of using LOYALTY.IE, you may provide Loyalty.ie with feedback, including but not limited to suggestions, observations, errors, problems, and defects regarding LOYALTY.IE (collectively "Feedback"). You hereby grant Loyalty.ie a worldwide, irrevocable, perpetual, royalty-free, transferable and sub-licensable, non-exclusive right to use, copy, modify, distribute, display, perform, create derivative works from and otherwise exploit all such Feedback.
Payment, Refunds, Upgrading and Downgrading
A valid credit card is required for paying accounts. Free accounts which provide a limited access to the Service are not required to provide a credit card number. LOYALTY.IE is billed in advance on a monthly basis in accordance with our pricing schedule and all payments are non-refundable. There will be no refunds or credits for partial months of Service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
You will be billed for your first month immediately upon signing up for a paying account. After signing up for a paying account you will be billed monthly starting on the 30th day after your account was initially created. An upgrade from the free account to any paying account will end your free trial. You will be billed for your first month immediately upon upgrading. For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged monthly the new rate.
On paying accounts, LOYALTY.IE will not allow additional users once your allotted user limit has been reached.

DOWNGRADING YOUR ACCOUNT MAY CAUSE THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF YOUR ACCOUNT. LOYALTY.IE DOES NOT ACCEPT ANY LIABILITY FOR SUCH LOSS.
Violation of these Terms of Service
Loyalty.ie reserves the right to investigate and prosecute violations of any of these Terms of Service to the fullest extent of the law. Loyalty.ie may involve and cooperate with law enforcement authorities in prosecuting users who violate the Terms of Service. You acknowledge that Loyalty.ie has no obligation to pre-screen or monitor your access to or use of LOYALTY.IE or any information, materials or other content provided or made available through LOYALTY.IE, but has the right to do so. You hereby agree that Loyalty.ie may, in the exercise of Loyalty.ie's sole discretion, remove or delete any entries, information, materials or other content that violates these Terms of Service or that is otherwise objectionable.
Cancellation
You are solely responsible for properly canceling your account. You may cancel your subscription either by emailing Loyalty.ie at billing@loyalty.ie calling us at 01 2963155 or sending a written letter to Loyalty.ie to the following address:
TRC House Dundrum Road, Dublin 14 Ireland
These are no questions asked cancellation methods but we will contact you to verify the cancellation of the subscription. Any cancellation of your Account will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. This information cannot be recovered from Loyalty.ie once your account is cancelled. Please be aware that Loyalty.ie may for a time retain residual information in our backup and/or archival copies of our database. We will make reasonable commercial efforts to delete your information as soon as possible after you communicate that intention to us.
Cancellations will take effect immediately. Upon the commencement of a new Service period the Service will terminate without additional notice, and you will not be charged for any subsequent Service periods. You will not be provided any refunds for unused time on your Service period.
Termination
Loyalty.ie, in its sole discretion, has the right to suspend or terminate your Account if (1) you breach these Terms of Service or (2) your bandwidth usage significantly exceeds the average bandwidth of other users of the Service. In each such case Loyalty.ie may refuse to provide you any current or future use of LOYALTY.IE, or any other Loyalty.ie Service. Any termination of your Account will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. This information cannot be recovered from Loyalty.ie once your account is terminated; however Loyalty.ie may for a time retain residual information in our backup and/or archival copies of our database.
Loyalty.ie reserves the right to refuse service to anyone for any reason at any time.
Modifications to LOYALTY.IE and Prices
Loyalty.ie reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, LOYALTY.IE and Service (or any part thereof) with or without notice.
Prices of all services, including but not limited to monthly subscription plan fees to LOYALTY.IE, are subject to change upon 30 days notice from us. Such notice may be provided at any time by posting the changes to LOYALTY.IE.
Loyalty.ie shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of LOYALTY.IE.
Loyalty.ie reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance LOYALTY.IE, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of LOYALTY.IE after any such changes shall constitute your consent to such changes.

API Terms
Customers may access their LOYALTY.IE Account data via an API (Application Program Interface). Any use of the API, including use of the API through a third-party product that accesses LOYALTY.IE, is bound by these Terms of Service plus the following specific terms:
You expressly understand and agree that Loyalty.ie shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Loyalty.ie has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.
Abuse or excessively frequent requests to Loyalty.ie via the API may result in the temporary or permanent suspension of your account's access to the API. Loyalty.ie, in its sole discretion, will determine abuse or excessive usage of the API. Loyalty.ie will make a reasonable attempt via email to warn the account owner prior to suspension.
Loyalty.ie reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
Technical support is only provided to paying account holders and is available via email and live chat. We will use commercially reasonable efforts to respond within a reasonable amount of time during regular business hours.

Without limiting the foregoing, under no circumstances shall Loyalty.ie or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
Questions about the Terms of Service should be addressed to
terms@loyalty.ie or by mail at: Loyalty.ie, TRC House, Dundrum Road Dublin
Questions about billing should be addressed to billing@loyalty.ie
Effective Date
These terms have been updated on April 15, 2010.