XOYALTY TERMS AND CONDITIONS

Thank you for visiting the XOYALTY (“Xoyalty”) application (“App”). This document sets forth the terms and conditions that apply to your use of the App.

Terms of Use and Agreement

1. Contractual Relationship

These Terms of Use ("Terms") govern your access or use, from within Canada, its provinces and its territories, of our services, including our website, SMS, APIs, email notifications, applications, buttons, widgets, ads, commerce services (the "Services," as more fully defined below in Section three (3)) made available in the Canada, its provinces and its territories and possessions by Xoyalty and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "Xoyalty"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND Xoyalty. In these Terms, the words "including" and "include" mean "including, but not limited to."

By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Xoyalty may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on Xoyalty.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Xoyalty may amend the Terms from time to time. Amendments will be effective upon Xoyalty’s posting of such updated Terms on our App or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If you do not agree to the revised terms, please stop using the App and/or Services.

Privacy Policy and User Data

Xoyalty’s collection and use of personal information in connection with the Services (our Privacy Policy) is set out in. https://www.xoyalty.com/privacy.php.  By using this App and/or Services and/or any App applications, you consent to our collection and use of personal information according to the terms of our Privacy Policy.

2. General Use and App License

The App and Services are designed for use by only those individuals who are at least eighteen (18) years of age. If you are not eighteen (18) years of age or older, please do not use the App and Services without the permission and supervision of your parent or legal guardian. If you are a parent or legal guardian and have authorized a minor to use the App and Services, you agree that you are responsible for the online conduct of the minor, and the consequences of any misuse of the App and/or Services by the minor.

You are solely responsible for your interactions with other users of the App. We reserve the right, but are under no obligation, to monitor disputes between you and other users.

You are responsible for keeping your device and your Xoyalty account safe and secure, and you must notify us promptly of any unauthorized use or security breach of your account or our Services.

You agree that you are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of this App and all charges related thereto. We shall not be liable for any damages to the End User’s equipment, or data charges resulting from the use of this App.

3. Services

"Services” include our various websites, SMS, APIs, email notifications, applications, buttons, widgets, ads, commerce services, and  any service we make available to or perform for you, as well as the offering of any materials displayed, transmitted or performed on or through the App. Anything a user posts to or otherwise makes available on the App is referred to as “User Content”. “Content” includes both content generated by Xoyalty and User Content.

4. Registration

You must register for our Services. In doing so you will be asked to provide a nickname, and valid current mobile phone number. If your mobile phone number changes then you will need to update it on the App to continue using our Services. You agree to receive text messages and phone calls (from us or our third-party providers) with codes to register for our Services. By registering to use the App, you are agreeing to be kept permanently signed in on your device unless the account is completely deactivated.

Communications: By registering with Xoyalty, you agree to receive communications from our Services and understand that these communications are essential for the functioning of the App. However, you can change the frequency of the communications by modifying your account preferences. You also have the option of unsubscribing from any non-essential communications from Xoyalty. You can also unsubscribe from any future communications from Xoyalty if you choose to deactivate your account.

Address Book

You have the option of either allowing or denying Xoyalty full access to your phone’s list of contacts. Once you give Xoyalty permission to access your list of contacts, Xoyalty will notify you how many contacts in your network are using the App. Xoyalty will provide you notifications on the activity of your contacts who are using App, without disclosing their identity. You will have the option to change your access preference anytime using our in-app change feature. You confirm you are authorized to provide or withhold from us such numbers to allow us to provide our Services.

Xoyalty will not contact, or send any communications regarding your products or services to users from your address book that are also registered with Xoyalty without their prior express consent.

You may not use as a nickname the name of another person or entity or that is not lawfully available for use, a name or trade mark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

You are responsible for maintaining the confidentiality of your nickname and cell phone number and are solely responsible for all activities resulting from the use of your nickname and cell phone number and conducted through your Xoyalty account.

If you are a business, government, or non-profit entity, the person whose cell phone number and nickname is associated with the account at the time of registration must have the authority to bind you to this Agreement.

If you are under the age of  eighteen (18) years, then you must seek the permission of your parent or legal guardian prior to registering an account. Your parent or legal guardian will then be responsible for your online conduct, and the consequences of any misuse of the App.

5. License

Xoyalty grants you a limited, non-exclusive license to access the App and use the Services for your own personal, non-commercial purposes, which includes the right to view, download and copy Content available on the App. For these purposes, “personal and non-commercial use” does not include the posting, uploading or otherwise publishing of Content to any other App, except that you may post Content from the App to blogs and social media web sites and services, for personal, non-commercial purposes. This license does not include any rights not specifically enumerated herein. The license is yours and may not be assigned or sublicensed to anyone else.

6. Termination

Xoyalty may terminate or suspend any and all Services and/or your Xoyalty user account immediately, without prior notice or liability, including without limitation if you breach the Terms. Upon termination of your account, your license will be revoked and your right to use the Services will immediately cease. If you wish to terminate your Xoyalty account, you may simply discontinue using the Services. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Content that you have shared with others on the App may still be available after the termination of your account. It is your responsibility to remove all User Content from your account prior to termination. Upon termination of your account Xoyalty may remove all Content posted to your account.

7. Prohibited Uses

As a condition to using the Services, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably foreseen to have been intended by Xoyalty. By way of example, and not as a limitation, you agree not to use the Services:

1. To collect and use product listings, descriptions or images;
2. To abuse, harass, threaten, impersonate or intimidate any person;
3. To post or transmit, or cause to be posted or transmitted, any Content that is libelous, defamatory, obscene, pornographic, abusive, offensive, profane, violent or that infringes any copyright or other right of any person;
4. For any purpose (including posting or viewing Content) that is not permitted under the laws of the jurisdiction in which you use the Services;
5. To post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Xoyalty App user;
6. To reverse engineer, decompile or disassemble the App, or to convert into human readable form any of the contents of this App not intended to be so read, including but not limited to using or directly viewing the underlying code for the App except as interpreted and displayed in a web browser
7. To create or transmit unwanted ‘spam’ to any person or any URL;
8. To violate or attempt to violate the security of the App;
9. To post copyrighted Content which doesn’t belong to you, with the exception of blog content, in which case you may post such Content with explicit mention of the author’s name and a link to the source of the Content;
10. With the exception of accessing RSS feeds, you will not use any robot, spider, scraper or other automated means to access the App for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes or might impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the App or any activities conducted on the App; or (iii) bypass any measures we may use to prevent or restrict access to the App;
11. To promote or sell Content of the App or any of its contents;
12. To advertise or perform any commercial, religious, political or non-commercial solicitation, including, but not limited to, the solicitation of users of this App to become users of other on- or offline services directly or indirectly competitive or potentially competitive with Xoyalty;
13. To interfere with or attempt to interfere with the proper working of the App
14. To sell or otherwise transfer your profile; or
15. To attempt to restrict another user from using or enjoying the Services or to encourage or facilitate violations of these Terms of Use or the Privacy Policy.

8. Intellectual Property Rights

Unless you are advised otherwise, everything you see or read on the App is subject to copyright, trademark or other forms of legal protection owned by or licensed by third parties to Xoyalty. Content may not be used except as provided in these Terms or in the text of the App without the written permission of Xoyalty.

Images displayed on the App are either the property of, or used with permission by, Xoyalty. Use of these images by you, or anyone authorized by you, is prohibited unless specifically permitted by these Terms or specific permission provided elsewhere on the App. Any unauthorized use of such images or other Content may violate the law.

The trademarks and logos (collectively the “Trademarks”) displayed on the App are registered and unregistered Trademarks. Nothing contained in the App gives you permission to use these Trademarks, and your use of the Trademarks is strictly prohibited. Xoyalty reserves the right to enforce its intellectual property rights where applicable.

9. App Promotions and Transactions

Coupons that you access through our App are special promotional offers that are offered by participating Merchants through our service. The coupons are redeemable to receive discounts for certain goods, services or experiences offered by, or facilitated through, the Merchant identified on the coupon. The Merchant is solely responsible for redeeming the coupon. The Merchant is the issuer of the coupon and is fully responsible for all goods and services it provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Liabilities”) it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a coupon or not. You waive and release Xoyalty and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any Liabilities arising from or related to any act or omission of a Merchant in connection with your use of a coupon or the goods or services it provides in connection with the coupon.

We reserve the right to limit quantities of coupons accessed by each user, to cancel any coupon or part of a coupon, or to refuse service to anyone for any reason. Such reasons may include, but are not limited to, unauthorized coupon use, product availability, price discrepancy or pricing error.  Users will be limited to one coupon per product every twenty four (24) hours.

We are not responsible for typographical or other errors or omissions regarding products, prices or other information provided on this App. All promotions are subject to the terms of this Agreement, in addition to any other terms that may apply. Promotional offers and the conditions of those offers, including any prices specified, are available for a limited time as specified on the App. Prices and promotions are subject to change without prior notice, and inventory and availability are subject to change.

The posting of prices on our App is not an offer for sale of goods, and the coupon generation is not an acceptance of an offer to purchase goods. Despite our best efforts, some items shown on this App may be mispriced. The contract for sale of goods between you and the Merchant is not entered into on the App, and will be subject to the terms of the Merchant.

Depending on your location, coupons offered from this App may be subject to local tax, laws, regulations, and restrictions.

By using any coupon on the App, you agree to the terms of this Agreement. Any attempt to redeem a coupon in violation of these Terms of Use will render the coupon void. By purchasing, viewing a mobile version, printing, accepting, using or attempting to use any coupon, you agree specifically to these Terms of Sale, the terms on the coupon, and any additional, deal specific terms advertising the coupon at the time of purchase (collectively, the “fine print” regardless of how labeled). These rules apply to all promotional coupon that we make available, unless a particular coupon’s fine print states otherwise, and except as otherwise required by law. In the event of a conflict between these rules and a coupon’s fine print, the coupon’s fine print will control.

10. Opinion and Feedback System

Users may request opinions, feedback, and reviews of products, services, and experiences advertised on our App. Any opinions received from other users on the App by using this feature are not the opinions of Xoyalty and Xoyalty is not responsible for any decisions made based on this feedback.

11. Merchant Specific Terms of Use

A. Registration & “My Account”

In order to be a Merchant on the Xoyalty App, you must register for our Services. In doing so you will be asked to provide a nickname, and valid current mobile phone number. If your mobile phone number changes then you will need to update it on the App to continue using our Services. You agree to receive text messages and phone calls (from us or our third-party providers) with codes to register for our Services. By registering to use the App, you are agreeing to be kept permanently signed in on your device unless the account is completely deactivated.

Address Book

You have the option of either allowing or denying Xoyalty full access to your phone’s list of contacts. Once you give Xoyalty permission to access your list of contacts, Xoyalty will notify you how many contacts in your network are using the App. Xoyalty will provide you notifications on the activity of your contacts who are using App, without disclosing their identity. You will have the option to change your access preference anytime using our in-app change feature. You confirm you are authorized to provide or withhold from us such numbers to allow us to provide our Services.

Xoyalty will not contact, or send any communications regarding your products or services to users from your address book that are also registered with Xoyalty without their prior express consent.

We will not tolerate, nor allow others to use any information from the App, for the transmission of unsolicited bulk communication to any of our users or to any third party. You may not access the Site to harvest and/or collect any information about our users, for any purpose, and any commercial communication that you may receive from us and/or our partners, licensors, suppliers and affiliates will clearly indicate measures to stop receiving such communications, including unsubscribe links and appertaining instructions.

By registering with Xoyalty, you agree to receive communications from our Services and understand that these communications are essential for the functioning of the App. However, you can change the frequency of the communications by modifying your account preferences.

You can also unsubscribe from any future communications from Xoyalty if you choose to deactivate your account.

You may not use as a nickname the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

Merchant users can also register with Xoyalty and create an account on their desktop to manage their business and access sales and client reports too big to access on a phone or an iPad. In order to access the desktop account, you will use a desktop code generator from the App and use the code as a single use password to login on the computer. Merchants will not be able to register for a Xoyalty account directly through a desktop. They will have to do so through their mobile phone, and then use the code from the App to login to their desktop computer.

You are responsible for maintaining the confidentiality of your nickname, cell phone number, and single use password for the desktop account and are solely responsible for all activities resulting from the use of your nickname, cell phone number, and single use password, and conducted through your Xoyalty account.

If you are a business, government, or non-profit entity, the person whose cell phone number and nickname is associated with the account at the time of registration must have the authority to bind you to this Agreement.

Merchant user accounts can be managed by an individual user or by multiple users. Merchant user accounts may be classified as either an “Owner” or “Employee” account. Employee accounts will have limited access rights and specifically is unable to add products or discounts to a Merchant account.

Each user can add or manage up to five (5) businesses from their account. The user will receive USD 5 to their balance for the first business he or she adds when registering their user profile. Merchants can also add up to five images of their business.

Please note that images uploaded on the App are stored using a third party cloud-based storage. If users choose to upload any images of their business, they are voluntarily giving Xoyalty permission to store these images with the third party cloud storage system.

The Merchant’s “My Account” section controls the financial aspect of their interaction with the App, including the balance of funds they have deposited with Xoyalty (the “Balance”). The Merchant will be charged a fee each time a user redeems a coupon with the Merchant (the “Redemption Fee”). See the “My Account” section for current information on Redemption Fees. Redemption Fees are subject to change. By registering as a user with Xoyalty, the Merchant is agreeing to allow Xoyalty to debit or credit the Merchant’s Balance according to this Agreement, including for the purposes of charging the Merchant a Redemption Fee.

The Merchant can add funds to their Balance at any time using PayPal.com or by any other method specified on the App.

B. Merchant Offers

The Merchant will be able offer three offers to Xoyalty users through the Coupon Program, Review Only Program, or Loyalty Points Program.
Any Xoyalty user shall, prior to receiving any electronic communications regarding the Merchant Offers, provide their consent to receiving such communications from Xoyalty. Merchants understand that customers could opt-out of non-essential communication in accordance with applicable email communications legislation.

1. Coupon Program

Merchant authorizes Xoyalty to promote and distribute coupons on Merchant’s behalf in accordance with this Agreement. Merchant is the seller of the goods, services, or experiences (“Merchant Offering”) being offered on the coupon.

Merchant shall be responsible for all customer service in connection with the Merchant Offering and for supplying all goods and services specified in the Merchant Offering and any customer loyalty programs associated with the Merchant Offering. Xoyalty reserves the continuing right, but shall not be obligated, to reject, revise, or discontinue promoting any Merchant Offering and coupon to conform the Merchant Offering and coupon to Xoyalty specifications or applicable law.

Xoyalty may offer on behalf of the Merchant the amount of coupons they have specified through a variety of platforms: including directly through its App and through e-mail promotions. All of these platforms may be made available to a part of or to Xoyalty’s entire subscriber base, or the communities associated with Xoyalty’s affiliates. For features offered on a recurring basis, Xoyalty will promote the Merchant Offering on dates in its discretion and will make reasonable efforts to allow Merchant to approve the Merchant Offering prior to its publication.

Merchant agrees that Xoyalty may, in their sole discretion, terminate any Merchant account at any time for any reason. Upon termination, Xoyalty will refund the Merchant the entirety of their Balance, and for any amounts earned through the Referral Program (see below).

2. Review Only Coupon

Merchants will be able to offer review only coupons if they are legally not allowed to offer discounts or loyalty points to users.

3. Loyalty Points

Merchants can collect and redeem loyalty points based on the number of contacts and the amount of purchase done. These points can be collected and redeemed for purchase in multiples of currency denominations of ten (10), for example, 1000 points in the United States would be ten US Dollars ($10 USD).

If a Merchant closes down their business, or requests Xoyalty to switch from the Loyalty program to the Discounts program, the points collected by the user will be transferred to the user’s general account with Xoyalty, wherein Xoyalty will offer them a Digital Gift card to use at a major retailer (e.g. Amazon, eBay, iTunes, etc) or give the user the option to transfer their points to another Xoyalty Merchant who is willing to accept the transfer.

Merchants can switch from the Discounts or Review only coupons to the Loyalty Points Program at any time but cannot switch from the Loyalty program to the other two programs without approval from Xoyalty.

C. Promotional Messages

Merchant users will be able to send promotional messages about their products and services to existing clients registered on Xoyalty. These messages will be visible to users after they login to the App.

Any existing clients registered on Xoyalty shall provide consent to Xoyalty prior to receiving any electronic promotional messages regarding a Merchant User’s products or services. Merchants understand that customers could opt-out of non-essential communication in accordance with applicable email communications legislation.

The Merchant will be charged a fee of ten cents (10 ¢) in USD when a user reads the promotional message. If the message expires after three (3) months without being read, the Merchant will not be charged anything. 

D. Reviews

Merchant will have the option to make the reviews written about their businesses by users public (visible to all users) or private (visible only to merchant). Merchant can change the type of visibility anytime using the in-app change feature. 

The reviews written by users will be anonymous.

E. Representations and Warranties

Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions in which Merchant's goods and services will be provided; (c) the Coupon, upon being delivered by Xoyalty, shall be available immediately for redemption; (d) the terms and conditions of the Coupon, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law and/or regulation governing the use, sale, and/or distribution of alcohol and any laws governing vouchers, gift cards, coupons, and/or gift certificates; (e) the terms and conditions of any rewards or loyalty programs the Merchant offers do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order; (f) Merchant owns all right, title and interest in the Merchant IP (as defined herein) and has the right to grant licenses in the Merchant IP as stated in this Agreement; (g) the Coupons and any advertising or promotion of Merchant's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (h) the Merchant IP does not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party; (h) Merchant holds all necessary regulatory documents and authorization documents, if any, required to make any Merchant Offering and provide the goods or services described therein; and (i) any financial details indicating where payments should be forwarded are accurate and are the authorized entity to receive the funds forwarded by Xoyalty; and (j) Merchant will not resell, broker or otherwise disclose any Customer Data (as defined below) to any third party, in whole or in part, for any purpose whatsoever, and Merchant will not copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of coupons in connection with this Agreement.

F. Indemnification

To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Xoyalty, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable lawyer’s fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement or the representations and warranties made herein; (b) any claim for provincial sales, use, or similar tax obligations of Merchant arising from the sale and subsequent redemption of a Voucher ("Taxes"); (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Coupons or unredeemed cash values of Coupons or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest. (d) any claim arising out of a violation of the law and/or regulation governing Merchant’s goods and/or services; (e) any claim arising out of Merchant’s violation of law and/or regulation governing the use, sale, and/or distribution of alcohol; and (f) any claim arising out of or relating to the goods and services provided by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages Xoyalty agrees to defend, indemnify and hold Merchant, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorney's fees and costs) arising out of or relating to any of the following (a) any infringement, misappropriation or other violation of any trademark or copyright of any third party by Xoyalty other than anything related to Xoyalty use of materials provided by Merchant or authorized for Xoyalty use by Merchant.; or (b) any modifications to Merchant’s advertising or promotion of Merchant’s products and services made by Xoyalty found to constitute false, deceptive or unfair advertising or disparagement under any applicable laws.

G. Intellectual Property Rights

Merchant agrees and acknowledges that Xoyalty owns all right, title, and interest in the App, trademarks, and any software, technology or tools used by Xoyalty to promote, market, sell, generate, or distribute the Vouchers (collectively the "Xoyalty IP"). Merchant shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the Xoyalty IP or any portion thereof, or use such Xoyalty IP as a component of or a base for goods or services prepared for commercial sale, sublicense, lease, access or distribution. Merchant shall not prepare any derivative work based on the XoyaltyIP. Merchant shall not translate, reverse engineer, decompile or disassemble the XoyaltyIP.

Merchant grants to Xoyalty a non-exclusive worldwide license and right to use, reproduce, display, distribute and transmit the Merchant's name, logo and any trademarks and any photographs, graphics, artwork, text and other content provided or specified by Merchant ("Merchant IP") in connection with the marketing, promotion, sale or distribution of Coupons , in any and all media, formats or platforms in which such Coupons are marketed, promoted, transmitted, sold, or distributed, including but not limited to on the Xoyalty App.

H. Customer Data Restrictions

a. “Customer Data” means any and all identifiable information about purchasers generated or collected by Xoyalty or Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, and purchaser preferences and tendencies.

b. Merchant may use Customer Data for the sole purpose of fulfilling its redemption obligations in connection with the Merchant Offering pursuant to this Agreement. Merchant expressly agrees that any Customer Data that may be provided hereunder is being provided solely to fulfill its redemption obligations (including, but not limited to, the redemption of Coupons and provision of goods and services to purchasers), and may not be used to enhance a file or list owned by Merchant, or any third party. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. Merchant agrees that it will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling its redemption obligations hereunder (including, but not limited to, redeeming Vouchers and providing goods and services to purchasers). If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy.

c. For purposes of this Agreement, the restrictions set forth herein on Merchant’s use of Customer Data do not apply to: (a) data from any customer who is already a customer of Merchant prior to the effective date of this Agreement, to the extent such data was previously provided to Merchant by such customer independent of this Agreement or any transaction hereunder; or (b) data supplied by a customer directly to Merchant who becomes a customer of Merchant in connection with such customer explicitly opting in to receive communications from Merchant for the purposes for which such Customer Data will be used by Merchant; provided that Merchant handles and uses such Customer Data in compliance with applicable Laws and Merchant’s posted privacy policy.

12. Copyright Complaints

Xoyalty respects the intellectual property rights of others. It is our policy to respond promptly to any claim that Content posted on the App infringes the copyright or other intellectual property right (“Infringement”) of any person. Xoyalty will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property law and these Terms where it believes an Infringement has taken place, including removing or disabling access to the Content claimed to be infringing and/or terminating user accounts and access to the App.

To notify Xoyalty of a possible Infringement you must submit your notice in writing to the attention of “Copyright Infringement”, care of copyright@xoyalty.com, and include in your notice a detailed description of the alleged Infringement sufficient to enable Xoyalty to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys’ fees) for misrepresenting that any Content is infringing your copyright.

If we remove or disable access to Content in response to a notice of Infringement, we will make reasonable attempts to contact the user who posted the affected Content. If you feel that your Content is not infringing, you may provide Xoyalty with a counter notice in writing to the attention of “Copyright Infringement Counter Notification” at copyright@xoyalty.com. You must include in your counter notice sufficient information to enable Xoyalty to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys’ fees) if you materially misrepresent that your Content is not infringing the copyrights of others.

If you are uncertain whether an activity constitutes Infringement, we recommended that you seek independent legal advice.

13. Links

The Services may provide, or third parties may provide, links to other World Wide Web sites or Apps or resources. Because Xoyalty has no control over such Apps and resources, you acknowledge and agree that Xoyalty is not responsible for the availability of such external Apps or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such Apps or resources. You further acknowledge and agree that Xoyalty shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content or goods or services available on or through any such App or resource.

14. Release and Indemnity

You hereby expressly and irrevocably release and forever discharge Xoyalty, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns of and from any and all actions, causes of action, suits, proceedings, liability, debts, judgments, claims and demands whatsoever in law or equity which you ever had, now have, or hereafter can, shall or may have, for or by reason of, or arising directly or indirectly out of your use of the App and the Services.

15. Cancellation

Xoyalty may, at its sole discretion, cancel or suspend any of your privileges related to the use of the App in whole or in part for any reason, including without limitation, the non-compliance with these Terms of Use.

16. Limitation Of Liability

In no event shall Xoyalty be liable under contract, tort, strict liability, negligence or other Legal theory with respect to the App, the Services or any Content (i) for any lost profits or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, (ii) to provide substitute goods or services (however arising), or (iii) for any direct damages in excess of (in the aggregate) $100.

17. Disclaimer of Warranties

THIS APP, ITS CONTENT, AND ANY ASSOCIATED SERVICES ARE PROVIDED BY THE XOYALTY ON AN "AS IS" AND "AS AVAILABLE" BASIS. XOYALTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS APP, TO THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THIS APP, OR TO THE FUNCTIONALITY OF ANY SERVICES ASSOCIATED THEREWITH. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, XOYALTY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF WORKMANLIKE EFFORT, OF SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, OR OF NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE. FURTHER, XOYALTY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THIS APP AND/OR ITS CONTENTS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. XOYALTY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOGRAPHY OR ANY OTHER CONTENTS ON THIS APP.

BY USING XOYALTY APP, YOU ACKNOWLEDGE THAT YOUR USE OF THE APP, INCLUDING YOUR USE OF ANY AND ALL ASSOCIATED CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS APP, AND ANY ASSOCIATED SERVICES IS SOLELY AT YOUR OWN RISK. XOYALTY DOES NOT WARRANT OR GUARANTEE THAT ITS APP, SERVERS OR E-MAILS SENT BY OR ON BEHALF OF XOYALTYARE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. FURTHER, XOYALTY DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED AND ERROR-FREE OPERATION OF ITS APP, NOR THAT ALL COMMUNICATIONS BETWEEN YOU AND XOYALTY, OR BETWEEN YOU AND ANY OTHER USER OF THE APP, WILL BE SECURE FROM ACCESS OR INTERFERENCE BY THIRD PARTIES.

18. Remedy

You agree that if you are dissatisfied with the App or any services offered in connection with the App, if you do not agree with any part of this Agreement, or you have any other dispute or claim with or against XOYALTY with respect to this Agreement or the App, your sole and exclusive remedy is to discontinue using the App and any services offered in connection with the App.

19. Miscellaneous

No agency, partnership, joint venture, or employment is created as a result of the Terms and you have no authority of any kind to bind Xoyalty in any respect whatsoever. The failure of any party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Xoyalty shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Xoyalty’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). Xoyalty may transfer, assign or delegate the Terms and its rights and obligations without consent.

20. Governing Law and Resolution of Disputes

The Terms shall be governed by and construed in accordance with the laws of Ontario, as if made within Ontario between two residents thereof, and the parties submit to the exclusive jurisdiction of Ontario courts. We have required that these Terms and Conditions and all documents relating thereto be drawn up in English. Nous avons demandé que cette convention ainsi que tous les documents qui s'y rattachent sont rédigés en anglais.

21. Interpretation

The division of these Terms and Conditions into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions. In these Terms and Conditions, words importing the singular number include the plural and vice versa, word importing gender include all genders; and words importing persons include individuals, sole proprietors, partnerships, corporations, trusts and unincorporated associations. All references to money amounts in these Terms and Conditions, unless otherwise specified, are in Canadian dollars.

22. Entire Agreement

These Terms and Conditions, as they may be amended from time to time in accordance with the provisions of these Terms and Conditions, and any and all other legal notices and policies on this App, constitute the entire agreement between you and Xoyalty with respect to the use of this App and the Services and Content.

23. Waiver

No waiver of any of the provisions of these Terms and Conditions shall be deemed to be or shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

24. Severability

Any provision of these Terms and Conditions which is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in such jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability and shall otherwise be enforced to the maximum extent permitted by law, all without affecting the remaining provisions of these Terms and Conditions or affecting the legality, validity or enforceability of such provision in any other jurisdiction.

25. Privacy Policy

Registration Data and certain other information about you are subject to our Privacy Policy. For more information, see our full privacy policy at https://www.xoyalty.com/privacy.php. You understand that through your use of the Services you consent to the collection, use and disclosure of this information, only as permitted by the Privacy Policy and its affiliates in order to provide the Services to you.