Provider T&Cs

1. About the Website

1. Welcome to www.yesloyal.com (the ‘Website‘). The Website facilitates interactions between:people looking to join a loyalty program offered by a business (the ‘User‘); and businesses offering a loyalty program as part of their business (the ‘Provider‘ or the ‘Business’). The platform includes the mobile application (the ‘Application‘), www.yesloyal.com (the ‘Website’) and any tools for Providers, such as subdomains and web portals (the ‘Platform’) which combine to facilitate the offering of loyalty programs by Providers to Users (the ‘Services’). The Services include, but are not limited to, memberships (the ‘Memberships‘), membership benefits (the ‘Membership Benefits’), loyalty points (the ‘Loyalty Points’), reward cards that can be purchased or claimed on the Application (the ‘Reward Cards’) and rewards set by the Provider (the ‘Rewards‘).
2. The Website is operated by New Modo PTY LTD (ABN 17 619 035 004) (‘Us’, ‘New Modo’, ‘We’ herein). Access to and use of the Website, or any of its associated Products or Services, is provided by New Modo.
3. New Modo agrees to operate the Platform to facilitate the Provider to supply Services to the Users in accordance with these terms and conditions (the ‘Terms’).

Acceptance and Understanding of the Terms
1. You understand the meaning of these Terms and agree to be bound by same.
2. New Modo reserves the right to review and change any of the Terms by updating this page. When New Modo updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. You agree to be bound by the Terms and any changes regardless of any notice of changes to these Terms.

Subscription to use the Services
1. In order to access the Services, you must first purchase a subscription through the Website (the ‘Subscription‘) and pay the applicable fee for the selected Subscription (the ‘Subscription Fee‘).
2. In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.
3. Once you have purchased the Subscription, you will then be required to register for an account through the Website before you can access the Services (the ‘ Account‘).
4. As part of the registration process, or as part of your continued use of the Services, you may be required to provide information about your business and you agree to provide same in a full and frank manner.
5. You warrant that any information you give to New Modo in the course of completing the registration process will always be accurate, correct and up to date.
6. Once you have completed the registration process, you will be a registered Provider of the Website and agree to be bound by the Terms. As a Provider you will be granted immediate access to the Services from the time you have completed the registration process until the subscription period expires (the ‘Subscription Period‘).
7. You may not use the Services and may not accept the Terms if:
  1. you do not have legal capacity to form a binding contract with New Modo;
  2. you are unable or likely unable to provide Services to the Users;
  3. you are unable or likely unable to be bound by these Terms;
  4. you do not agree to be bound by the Terms; or
  5. you are a person or entity barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

Your obligations as a Provider
1. As a Provider, you agree to comply with the following:
  1. You will use the Services only for purposes that are permitted by:
    1. the Terms; and
    2. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdiction.
  2. You will inform us, as soon as possible but with at least thirty (30) days notice prior to, of any changes to your terms and conditions of sale, agreement with the User or significant changes to your business which would impact Us or the User including but not limited to changes in control of the business, sale of the business or if the business experiences an insolvency event.
  3. You have the sole responsibility for ensuring that your Account is not being used by anyone other than authorised persons of your business. Use of your Account by another person or entity may result in the immediate cancellation of the Account;
  4. Any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify New Modo of any unauthorised use of your Account or any breach of security of which you have become aware;
  5. Access and use of the Website is limited, non-transferable and allows for the sole use of the Website by your business for the sole purpose to provide Services to the User;
  6. You will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of New Modo;
  7. You will not use the Services or Website for any illegal and/or unauthorised use which includes using the collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website or providing or selling Users’ personal details to third parties or selling, trading or otherwise dealing with illegal goods and/or substances;
  8. You agree that any unauthorised commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by New Modo for any illegal or unauthorised use of the Website; and
  9. You acknowledge and agree that any automated use of the Website or its Services is prohibited. Automated use of the website broadly includes actions such as:
    1. Using automated tools to administer their Loyalty Program or any part of their account; or
    2. Using automated tools to access the website, app or platform (e.g. scrap, extract, or collect data); and
  10. You agree to provide the Services to the User on a timely basis.
  11. You agree that, upon request, New Modo may provide you with link/s to the Platform, Application or Website for your own social media, website or other marketing purposes. However, you agree that New Modo will not be held liable if these links are broken or links are taken down by your social media, website or other platform operator.
  12. You agree that Twilio operates our communication and verification systems on the Platform, Application and Website and you do not hold New Modo liable for any claims or actions for damages arising from issues with Twilio.

Payment
1. Where the option is given to you, you may make payment of the Subscription Fee by way of:
  1. Electronic funds transfer(‘ EFT ‘) into our nominated bank account;
  2. Credit Card Payment (‘Credit Card‘); or
  3. Direct debit from your bank account through a third-party provider.
2. All payments made in the course of your use of the Services are made using GoCardless;
3. In using the Website, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the GoCardless terms and conditions which are available on their website.
4. Where payment is via direct debit through the third-party provider of our choice, you agree to pay the instalment amount at the agreed payment frequency for the term of the Agreement. You may alter the payment frequency with the third-party direct debit provider by requesting a change directly to the third-party direct debit provider. Any changes made shall not affect the total amount of money you would otherwise be required to pay. Should there be any payments arrears, you authorise the third-party direct debit provider to debit the outstanding balance in order to bring the account up to date.
5. If you do not pay within the payment term, you agree that we may:
  1. Charge interest until the date of payment at rate of eight (8%) per annum.
  2. Charge an administration fee of the greater of ten (10%) of the amount overdue or $200.00;
6. You authorise the third-party direct debit provider to add any fees owing with regard to administration fees or late payment fees. You acknowledge that the third-party direct debit provider is entitled to store your personal information, which can be amended in accordance with the Privacy Act 1988 (Cth).
7. You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription Fee.
8. You agree and acknowledge that New Modo can vary the Subscription Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.

Refund Policy
1. New Modo will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Services or if the manager of New Modo makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Provider (the ‘Refund‘).

Copyright and Intellectual Property
1. The Website, the Services and all of the related products of New Modo are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by New Modo or its contributors.
2. All trademarks, service marks and trade names are owned, registered and/or licensed by New Modo, who grants to you a worldwide, non-transferrable, non-exclusive, royalty-free, revocable license whilst you are a Provider to:
  1. use the Website pursuant to the Terms;
  2. copy and store the Website and the material contained in the Website in your device’s cache memory; and
  3. print pages from the Website for your own personal and non-commercial use.
  4. New Modo does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by New Modo.
3. New Modo retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
  1. business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
  2. a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
  3. a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
4. You may not, without the prior written permission of New Modo and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
5. You will not infringe any copyright, trademark and licence rights over any images, logos, photos, sketches, symbols, text, branding, music, melodies, compositions, artistic works, dramatic works, musical works, sound recordings, broadcasts, computer programs and other material form of expression (other than those approved for your use by New Modo) you may use in connection with the Platform.
6. You indemnify New Modo from any (past, present or future) action or action for damages arising from your breach of this clause 7.

Privacy
1. New Modo takes your privacy seriously and any information provided through your use of the Website and/or Services are subject to New Modo’s Privacy Policy, which is available on the Website.
2. You agree to be bound by New Modo’s Privacy Policy when providing Services to the Users.

General Disclaimer
1. These Terms do not create and cannot be construed to create a partnership, joint venture or any other relationship between the parties except for New Modo to operate a Platform for the Provider to supply Services to the User.
2. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
3. Subject to this clause, and to the extent permitted by law:
  1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
  2. New Modo will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
4. Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of New Modo make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of New Modo) referred to on the Website, includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
  1. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
  2. the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
  3. costs incurred as a result of you using the Website, the Services or any of the products of New Modo; and
  4. the Services or operation in respect to links which are provided for your convenience.

Limitation of liability
1. New Modo’s total liability arising out of or in connection with the Services orthese Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the Subscription Fee paid for the relevant period.
2. You expressly understand and agree that New Modo, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill, loss of expectation or business reputation and any other intangible loss.

Termination of Contract
1. The Terms will continue to apply until terminated by either you or by New Modo as set out below.
2. If you want to terminate the Terms, you may do so by:
  1. not renewing the Subscription prior to the end of the Subscription Period;
  2. providing New Modo with 30 days’ notice of your intention to terminate;
  3. paying out or transferring any credit, points, rewards or other benefits you owe to the Users with the agreement with the Users;
  4. Paying any amounts owing to Us including the Subscription Fee to the end of the Subscription Period;
  5. closing your accounts for all of the services which you use, where New Modo has made this option available to you.
    1. Your notice should be sent, in writing, to New Modo via the ‘Contact Us’ link on our homepage.
3. New Modo may at any time, terminate the Terms with you if:
  1. you do not renew the Subscription at the end of the Subscription Period;
  2. you have breached any provision of the Terms or, in New Modo’s opinon, it appears that you intend to breach any provision;
  3. New Modo is required to do so by law;
  4. the provision of the Services to you by New Modo is, in the opinion of New Modo, no longer commercially viable.
4. Subject to local applicable laws, New Modo reserves the right to discontinue orcancel your Account at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts New Modo’s name or reputation or violates the rights of those of another party.

Indemnity
1. You agree to indemnify New Modo, its affiliates, employees, agents,contributors, third party content providers, Users and licensors from and against:
  1. all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on an indemnity basis) incurred, suffered or arising out of or in connection with Your Content, Account and/or Services provided to the Users;
  2. any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
  3. any breach of the Terms.

Dispute Resolution
1. Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
2. Notice: A party to the Terms claiming a dispute (‘Dispute‘) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
3. Resolution: On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties‘) must:
  1. Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
  2. If for any reason whatsoever, 7 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
  3. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
  4. The mediation will be held in Sydney NSW, Australia.
4. Confidential: All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
5. Termination of Mediation: If 2 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

Venue and Jurisdiction

The Services offered by New Modo is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.

15. Governing Law

The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

Assignment

New Modo may assign their obligations under these Terms without notice.

You may assign your obligations under these Terms with prior written consent from New Modo.

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