Please read these referral programme terms carefully.
In order to participate in LoyaltyLion Ltd’s referral programme (the “Referral Programme”), you must read, agree with, and accept all of the following terms (the “Referral Programme Terms“).
By clicking on the ‘submit’ or ‘accept’ button when you submit your application to participate in the referral programme, you confirm that you have read, understand, and agree to be bound by the referral programme terms. The terms of this referral programme include, in particular, limitations on liability. If you do not agree to the referral programme terms, you may not participate in the referral programme.
1. Who we are
1.1. We are LoyaltyLion Ltd, a company incorporated and registered in England under company number 08264116. Our registered office is at Hubhub, LoyaltyLion, 20 Farringdon Street, London EC4A 4EN, England. We refer to ourselves as “LoyaltyLion” in these Referral Programme Terms.
1.2. How to contact us. If you have any questions or concerns about what the Referral Programme or these Referral Programme Terms, please email us at partnerships@LoyaltyLion.com.
2. Definitions
2.1. In these Referral Programme Terms, unless otherwise expressly stated, the following capitalised expressions shall bear the meanings given to them respectively below:
“Base Value” means, in relation to each Relevant Contract, the sum equal to ninety-five per cent (95%) of such portion of the Net Sales Price that is, under such Relevant Contract, payable to LoyaltyLion during the first twelve (12) months of the term of such Relevant Contract.
“Confidential Information” means all data and information of a confidential nature of one party disclosed by such party (the “Disclosing Party“)to the other party (the “Receiving Party“) pursuant to these Referral Programme Terms, as well as information that the Receiving Party knows or reasonably should know that the Disclosing Party regards as confidential, including the business practices, software, technical information, future product/services plans, programming/design techniques or plans, know-how, trade secrets, prospects, customers, end users, suppliers, development plans or projects, and services. Confidential Information may be communicated orally, in writing, or in any other recorded or tangible form.
“Control” means, in respect of a company or corporation, the beneficial ownership of more than 50% of the issued share capital of such company or corporation, or the legal power to direct or cause the direction of the management thereof.
“Controller“, “Processor“, “Data Subject“, “Personal Data“, “Personal Data Breach“, “Processing“and”Sub-Processor“shall each have the meanings as defined in the UK GDPR (and “Processes” and “Processed” shall be interpreted accordingly).
“Data Protection Legislation” means Regulation (EU) 2016/679 (the “GDPR“), the UK GDPR as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018 (the “UK GDPR“), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all other applicable laws and regulations relating to the processing of Personal Data.
“Data Transfer Provisions” means, together, the standard contractual clauses for the transfer of Personal Data to third countries pursuant to the GDPR and/or the UK GDPR (as applicable), adopted by the European Commission under Commission Decision (EU) 2021/914 2021 (“EU SCCs“) and/or the UK International Transfer Addendum (“UK Addendum“) thereto (as applicable).
“Eligible Referred Party” means, subject to clause 4.5, a Sales Lead: (a) which, at the time of a Referral by Referrer in respect of such Sales Lead, is not already an existing customer of LoyaltyLion or is not already involved in preliminary or advanced discussions with LoyaltyLion relating to the sale of LoyaltyLion Products; (b) which has an active registration with Shopify or Shopify Plus, or has provided a commitment in writing that they will register with Shopify or Shopify Plus within three (3) months of the date Referrer first notifies LoyaltyLion in writing of such Sales Lead; (c) which has not previously been submitted to LoyaltyLion through a Sales Lead Registration Application by Referrer or any other third party; (d) which is not an employee, contractor, worker, staff member, officer, director, or representative of either party; (e) for which LoyaltyLion accepts, in its sole and absolute discretion, a Sales Lead Registration Application from Referrer; (f) which LoyaltyLion determines, in its sole and absolute discretion, falls within the scope of LoyaltyLion’s ideal client profile; and (g) becomes a paying customer of LoyaltyLion Products (and has entered into a legally binding agreement with LoyaltyLion in respect thereof) no later than one-hundred and eighty (180) calendar days after LoyaltyLion’s receipt of a Sales Lead Registration Application pertaining to such Sales Lead from Referrer.
“Intellectual Property Rights” means all intellectual property and proprietary rights now known or hereafter recognized in any jurisdiction, including rights associated with any of the following: (a) patents, patent applications, patent disclosures, and inventions and all improvements thereto (whether or not patentable or reduced to practice), (b) trademarks, service marks, domain names, trade dress, and other indicia of source, together with the goodwill associated therewith, (c) copyrights, moral rights and works of authorship (whether or not copyrightable), or (d) trade secrets, know-how, technologies, software, databases, processes, techniques, protocols, methods, formulae, algorithms, layouts, designs, specifications and other Confidential Information.
“LoyaltyLion Materials” means any collateral materials describing LoyaltyLion Products provided to Referrer by LoyaltyLion for use in connection with the Referral Programme.
“LoyaltyLion Products” means LoyaltyLion’s proprietary customer engagement and management software platform and related services, as further described from time to time on LoyaltyLion’s website at www.LoyaltyLion.com.
“Net Sales Price“means, in relation to any Relevant Contract, such portion of the invoiced price actually paid by the Eligible Referred Party in full and cleared funds to Loyalty Lion in consideration of the relevant LoyaltyLion Products provided under such Relevant Contract, minus each of the following: (a) any value-added tax or other applicable sales tax; and (b) any discounts, rebates, or refunds given (or, as the case may be, agreed to be given) by LoyaltyLion.
“Quarter“means each successive period of three (3) calendar months falling during a calendar year, of which the first begins on 1 January of such calendar year.
“Referral Fee“means, in relation to each Relevant Contract, a sum equal to twenty per cent (20%) of such Relevant Contract’s Base Value.
“Referral” means Referrer’s submission to LoyaltyLion of the relevant details (as required under a Sales Lead Registration Application) of a Sales Lead via a properly and fully completed Sales Lead Registration Application in accordance with these Referral Programme Terms (and “Refer”, “Refers“, and “Referred” shall be interpreted accordingly);
“Referrer” means you in your capacity as a sole trader or, where you are acting on behalf of an organisation, that organisation.
“Relevant Contract“means a contract for the supply of LoyaltyLion Products entered into between LoyaltyLion and an Eligible Referred Party.
“Sales Lead Registration Application” means the online form available from time to time on LoyaltyLion’s website and through which Referrer may make a Referral.
“Sales Lead” means a potential or prospective third-party customer of LoyaltyLion Products that is identified by Referrer in a Sales Lead Registration Application.
“Term” means the duration of the agreement constituted by these Referral Programme Terms, as determined in accordance with clause 12.1.
3. Eligibility to participate
3.1. The Referral Programme is not open to, and you may not participate in the Referral Programme if you are (or become at any time during the Term) an employee, consultant, subcontractor, staff member, officer, or director of LoyaltyLion.
3.2. The Referral Programme is intended for referrals by businesses and professionals only. To the extent you are a consumer or are acting outside the course of your principal profession, trade, business, or craft, you may not participate in the Referral Programme and will not be entitled to any benefits or rights provided hereunder.
3.3. You represent and warrant that, at the date on which you accept these Referral Programme Terms and on each date that you make a Referral, you are not disqualified from participating in the Referral Programme under or pursuant to clauses 3.1 or 3.2 above.
4. Referrals
4.1. Appointment. LoyaltyLion hereby appoints Referrer, solely during the Term and on a non-exclusive basis, to make Referrals to LoyaltyLion in accordance with these Referral Programme Terms, and Referrer hereby accepts such appointment.
4.2. Scope of Referrer’s authority. Referrer’s sole authority under these Referral Programme Terms shall be as expressly stated in this clause 4. The parties agree that LoyaltyLion will directly enter into agreements with LoyaltyLion Customers for the provision of LoyaltyLion Products to such LoyaltyLion Customers.
4.3. Restrictions. Referrer shall not in any circumstances: (a) sell, resell, distribute, license or sublicense the LoyaltyLion Products directly to any Sales Lead or negotiate the terms of any such transaction, but will instead refer all Sales Leads to LoyaltyLion; (b) make any statements concerning the LoyaltyLion Products that are false, misleading or inconsistent with the LoyaltyLion Materials or other materials (including price lists) published or otherwise supplied by LoyaltyLion from time to time; (c) make any commitments, warranties or guarantees to Sales Leads with respect to the LoyaltyLion Products, the pricing thereof, or Referrer’s relationship with LoyaltyLion. Referrer has no authority to: (i) negotiate any contract for or on behalf of LoyaltyLion; (ii) enter into on LoyaltyLion’s behalf or bind LoyaltyLion to any contract, representation or understanding concerning LoyaltyLion or the LoyaltyLion Products, or any other products or services offered by LoyaltyLion that are outside the scope hereof; or (iii) obtain orders from any third party (including any Sales Lead) for the sale of any LoyaltyLion Product.
4.4. Referrer activities. During the Term, Referrer shall use best endeavours to identify suitable Sales Leads and to make Referrals of such Sales Leads in accordance herewith. In the course of performing its obligations under this clause 4.4, Referrer may provide Sales Leads with the LoyaltyLion Materials as supplied to Referrer by LoyaltyLion in accordance with the licence in clause 4.9.
4.5. Sales Lead Registration. In order to make a Referral, Referrer must register the relevant Sales Lead with LoyaltyLion by submitting the details of the Sales Lead in a Sales Lead Registration Application. LoyaltyLion will within a reasonable time of its receipt of properly and fully completed Sales Lead Registration confirm whether or not such Sales Lead is of interest to LoyaltyLion. To the extent such Sales Lead is of interest, then, following such confirmation, at LoyaltyLion’s request, Referrer shall discuss the relevant completed Sales Lead Registration Application in reasonable detail with LoyaltyLion and will assist LoyaltyLion in making contact with the relevant Sales Lead by arranging an introduction, meeting, conference call, or other means of communication between LoyaltyLion and such Sales Lead. Unless otherwise agreed in writing by LoyaltyLion, if there are no two-way communications between LoyaltyLion and the relevant Sales Lead within one (1) week of the Notification then the Sales Lead will cease to be an Eligible Referred Party. If LoyaltyLion notifies Referrer that such Sales Lead is not an Eligible Referred Party, Referrer will immediately cease all Services with respect to such Sales Lead.
4.6. Recurring Meetings. At the request of LoyaltyLion (which request may be at least once per calendar month), Referrer shall meet, either in person or via teleconference, to discuss the status of the commercial relationship between the parties.
4.7. Ownership of LoyaltyLion Materials. The LoyaltyLion Materials, including all Intellectual Property Rights subsisting therein, shall at all times be owned by LoyaltyLion. Nothing in these Referral Programme Terms shall transfer such ownership or any such Intellectual Property Rights to Referrer.
4.8. Licence to use LoyaltyLion Materials. LoyaltyLion grants to Referrer a non-exclusive, worldwide, revocable, limited licence, solely during the Term, to use and disclose to Sales Leads the LoyaltyLion Materials solely and strictly in order that Referrer may perform its obligations hereunder.
4.9. Use of LoyaltyLion name and trademarks. Referrer shall not produce any marketing material for LoyaltyLion’s Products or use LoyaltyLion’s name, logo or trade marks on any marketing material when providing the Services without the prior written consent of LoyaltyLion (such consent being at LoyaltyLion’s sole and absolute discretion). Where LoyaltyLion gives such consent, Referrer shall comply with all instructions that LoyaltyLion communicates to Referrer regarding the use of LoyaltyLion’s name, logo, and/or trade marks.
4.10. Miscellaneous. During the Term, Referrer shall: (a) act diligently and in good faith towards the LoyaltyLion and each Sales Lead; (b) seek to enhance the reputation of LoyaltyLion; (c) make clear to all Sales Leads generally of the limitations to it scope of authority hereunder; and (d) comply with all applicable laws in the performance of its obligations hereunder, including without limitation any applicable anti-bribery or anti-corruption laws. Referrer shall not any time during the Term: (i) pledge LoyaltyLion’s credit; (ii) allow its interests to conflict with those of LoyaltyLion; (iii) take part in any negotiations between LoyaltyLion and any Sales Lead; (iv) enter into any settlement or compromise with Sales Leads; (iv) incur any obligation on the Supplier’s behalf except as expressly permitted hereunder or with the Supplier’s prior written consent; (v) make, receive, or accept any secret income, profit, or other benefit in connection herewith; or (vi) do or omit to do anything that shall harm LoyaltyLion’s reputation or goodwill.
5. Fees & payment
5.1. Payment Details. If the Sales Lead becomes an Eligible Referred Party during the Term, then LoyaltyLion will notify Referrer thereof in writing. Promptly following LoyaltyLion having made such notification to Referrer, Referrer shall provide bank details (as reasonably requested by LoyaltyLion) of its nominated account to LoyaltyLion in order that LoyaltyLion may pay the relevant Referral Fee due in connection with such Sales Lead having become an Eligible Referred Party (and, for clarity, LoyaltyLion shall not be obliged to make payment of any Referral Fees via any other payment method). Referrer shall ensure that the person notifying LoyaltyLion of such bank details pursuant to this section 5.1 must, at the time of providing them, confirm if they are making a referral:
in their capacity as a representative, staff or personnel member, or employee or consultant of an organization, in which case they must provide such organization’s valid bank details and the name of such organization; or
as an individual, in which case they must provide their own bank details.
For the avoidance of doubt, LoyaltyLion shall have no liability to Referrer to the extent that the person notifying LoyaltyLion of the bank details provides incorrect bank details and LoyaltyLion shall be deemed to have fully discharged its obligations hereunder in relation to the payment of any and all Referral Fees hereunder to the extent that such Referral Fees are paid into the account corresponding with such bank details, whether or not they are correct. If Referrer does not provide valid bank details within one (1) month of LoyaltyLion’s request, then Referrer shall immediately forfeit any and all rights to receive the relevant Referral Fee and LoyaltyLion shall not have any liability or obligation in connection therewith.
5.2. Referral Fees. Subject to these Referral Programme Terms and in consideration of a Referral that leads to a Sales Lead becoming an Eligible Referred Party, LoyaltyLion shall pay Referrer the relevant Referral Fees by bank transfer within forty-five (45) days after the end of each Quarter. For the avoidance of doubt, the Referral Fee will only be paid by bank transfer and not by PayPal. For the avoidance of doubt, Referral Fees will not be payable for Sales Leads that are not confirmed by LoyaltyLion as Eligible Referred Parties or for any fees owed by an Eligible Referred Party that are payable but not yet paid to LoyaltyLion. Referrer agrees that the Exchange Rate applicable to all payments made under this Agreement in a currency other than British Pounds Sterling (GBP) or United States Dollar (USD) will be determined at the Company’s sole discretion. The Company shall select the Exchange Rate from among the rates available in commercial banking sources or currency exchange markets on the payment date.
5.3. Termination of the Relevant Contract. If the Relevant Contract is terminated then LoyaltyLion will, subject to the terms of this Agreement, pay the Referral Fee that has accrued under the Relevant Contract up until the date of such termination. For the avoidance of doubt, no further Referral Fees will be payable, even if the Sales Lead later re-contracts with LoyaltyLion under a new agreement.
5.4. Taxes. Referrer is solely responsible for remitting all taxes associated with any Referral Fees paid to it hereunder.
5.5. Deductions. LoyaltyLion shall be entitled to deduct from the Referral Fees any sums that Referrer may owe to LoyaltyLion at any time.
5.6. Disputes. All disputes related to Referral Fees that Referrer wishes to raise must be submitted in writing to LoyaltyLion within thirty (30) days of LoyaltyLion having made payment of the disputed amount. In submitting notification of any such dispute, Referrer shall provide reasonably comprehensive details as to the nature and particulars of the dispute to enable LoyaltyLion to review such claim. Payment in part or in full of any Referral Fees shall be without prejudice to any claims or rights LoyaltyLion may have against Referrer.
6. Warranties
6.1. Warranties. Referrer warrants and represents: (a) it has the full corporate right, power and authority to enter into the agreement constituted by these Referral Programme Terms and to perform its obligations hereunder; and (b) neither its acceptance or performance of these Referral Programme Terms does or will conflict with, or result in a breach (including with the passage of time) of, any other agreement to which it is a party.
6.2. LoyaltyLion Products. Except in the course of delivering the LoyaltyLion Materials as specifically permitted in clause 4.4, Referrer shall not provide any representations or warranties to any Sales Lead or any other third party with respect to the LoyaltyLion Products.
7. Disclaimer
7.1. Except as expressly stated in this Agreement, and subject to clause 11.4:
all warranties, representations, and conditions (whether express or implied by statute, common law or otherwise) given or to be given on the part of LoyaltyLion are excluded to the extent permitted by law; and
LoyaltyLion acknowledges that Referrer has not made any representation, assurance, or promise that LoyaltyLion shall receive any successful Referrals, new clients, or new business and Referrer acknowledges that LoyaltyLion has made no warranty, representation, guarantee, or assurance that Referrer shall receive any fees as a result of entering into these Referral Programme Terms.
7.2. Neither party shall be in breach hereof nor liable for delay in performing, or failure to perform, any of its obligations hereunder if such delay or failure result from events, circumstances, or causes beyond its reasonable control.
8. Data protection
8.1. The parties acknowledge that Personal Data contained in any Sales Lead Registration provided by Referrer to LoyaltyLion (“Contact Data“) may be shared between the parties in order to fulfil the obligations or receive the benefits under this Agreement. To the extent either party Processes any Contact Data provided by the other party, the parties shall comply with the obligations contained within this clause 8.
8.2. Although the parties acknowledge that the Data Protection Legislation shall ultimately determine status, they are of the view that they are independent Data Controllers as defined by and for the purposes of the Data Protection Legislation.
8.3. Each party agrees that it shall comply with all applicable Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.4. Referrer will ensure that it has all necessary and appropriate consents and notices in place to: (i) enable the lawful transfer of any Contact Data submitted by Referrer to LoyaltyLion; and (ii) for LoyaltyLion to contact Sales Leads as contemplated by these Referral Terms. Referrer warrants and represents that it has all such consents and notices in place each time that it makes a Sales Lead Registration.
8.5. Referrer shall, in respect of shared Contact Data, ensure that its privacy notice is clear and provides sufficient information to the Data Subjects for them to understand what of their Personal Data Referrer is sharing with LoyaltyLion, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of LoyaltyLion as the receiving party or a clear description of the type of organisation that will receive the Contact Data.
8.6. LoyaltyLion will inform the Data Subjects, in accordance with applicable Data Protection Legislation, of the purposes for which it will Process their Personal Data and provide all of the information that it must provide, in accordance with its own applicable laws, to ensure that the Data Subjects understand how their Personal Data will be Processed by Loyalty Lion.
8.7. The parties agree to provide reasonable assistance as is necessary to each other to enable them to facilitate Data Subjects exercising their rights under the Data Protection Legislation in respect of the Contact Data.
8.8. LoyaltyLion shall not retain or Process the shared Contact Data for longer than is necessary to carry out the relevant purpose, except that the parties shall continue to retain the shared Contact Data in accordance with any statutory or professional retention periods applicable to them.
8.9. Referrer shall only provide the shared Contact Data to LoyaltyLion by using secure methods.
8.10. Having regard to the state of technological development and the cost of implementing such measures, each party shall have in place appropriate technical and organisational security measures in order to:
prevent unauthorised or unlawful Processing of the shared Contact Data;
prevent the accidental loss or destruction of, or damage to, the shared Contact Data; and
ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful Processing or accidental loss, destruction or damage, and the nature of the shared Contact Data to be protected.
8.11. Each party shall ensure that it, and its employees (as applicable) are obliged to keep the Contact Data confidential.
8.12. The parties shall notify each other as soon as reasonably practicable after becoming aware of a Personal Data Breach in respect of the Contact Data (even if such breach has not yet been fully investigated). The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of such Personal Data Breach in an expeditious and compliant manner.
8.13. In the event of a dispute or claim brought by a Data Subject or a data protection supervisory authority concerning the Processing of shared Contact Data against a party, such party will inform the other thereof and will cooperate with the other party with a view to settling such dispute or claim amicably in a timely fashion.
8.14. The parties agree to respond to any generally available non-binding mediation procedure initiated by a Data Subject or by a relevant data protection supervisory authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
8.15. Each party shall abide by a decision of a competent court of the disclosing party’s country of establishment or of the data protection supervisory authority which is final and against which no further appeal is possible.
8.16. If an adequate protection measure for the international transfer of Personal Data is required under Data Protection Legislation (and has not otherwise been arranged by the parties) the Data Transfer Provisions shall be incorporated into these Referral Programme Terms in the Schedules hereto (which constitute part of the Referral Programme Terms) as if they had been set out in full.
8.17. The parties shall ensure that whenever Personal Data is transferred outside the European Economic Area and the United Kingdom they:
are Processing Personal Data in a territory which is subject to a current finding by the UK’s Information Commissioner’s Office or European Commission (as applicable) under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals;
participate in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the parties can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the GDPR or the UK GDPR (as applicable); or
otherwise ensure that the transfer complies with the Data Protection Legislation.
9. Confidentiality
9.1. Obligations of confidentiality. Each Receiving Party shall maintain in confidence all Confidential Information disclosed to it by the Disclosing Party. No Receiving Party shall use for any purpose outside the scope hereof, or disclose to any third party, such Confidential Information except as expressly authorized herein. No Receiving Party may disclose any Confidential Information to any third party, other than to its (and its affiliates’) directors, officers, employees, agents, professional advisors, and representatives (collectively, such Receiving Party’s “Representatives“) who are required to have access to such Confidential Information in order that the Receiving Party may perform its obligations and exercise its rights herein, provided that each such Representative is subject to legally binding confidentiality obligations no less protective of the relevant Confidential Information than as set forth herein. Each party shall use at least the same standard of care as it uses to protect its own confidential information of a similar nature (and in no event less than reasonable care) to ensure that such Representatives do not disclose or make any unauthorized use of such Confidential Information. A Receiving Party shall be responsible for any breach by any of its Representatives of any provision hereof. A Receiving Party shall promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information disclosed by the Disclosing Party. Notwithstanding any other provision herein to the contrary, the provisions of this clause 9 shall survive any termination or expiration hereof for a period of five (5) years thereafter; provided that a Receiving Party shall safeguard all Confidential Information that is a trade secret as required by these Referral Programme Terms in perpetuity or for so long as such information remains a trade secret under applicable law.
9.2. Exceptions. The obligations of confidentiality contained in clause 9.1 shall not apply to the extent that it can be established by the Receiving Party by competent proof that such Confidential Information:
was already known to the Receiving Party at the time of disclosure by the Disclosing Party (other than by way of a breach of any obligation of confidentiality);
was generally available to the public or was otherwise part of the public domain at the time of its disclosure to the Receiving Party;
became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of the Receiving Party in breach hereof;
was disclosed to the Receiving Party by a third party who had no obligation of confidentiality in respect of the disclosure of such Confidential Information to others; or
was independently developed by employees, staff, officers, directors, or contractors of the Receiving Party without access to the Confidential Information disclosed by the Disclosing Party, as proven by reasonably clear and convincing evidence.
9.3. Authorized Disclosure. Notwithstanding any provision to the contrary herein, the Receiving Party may disclose Confidential Information to the extent required by law or any governmental authority, provided that such Receiving Party shall to the extent reasonably practicable use commercially reasonable efforts to assist the Disclosing Party in securing confidential treatment of such information required to be disclosed. Prior to disclosing any Confidential Information under this clause 9.3, if legally permissible, the Receiving Party shall take reasonable steps to give the Disclosing Party sufficient notice of the disclosure request in order for the Disclosing Party to contest the disclosure request.
9.4. Equitable relief. Referrer recognizes that any breach or threatened breach hereof may cause LoyaltyLion irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to LoyaltyLion, Referrer acknowledges and agrees that LoyaltyLion is entitled to the remedies of specific performance, injunction, and other equitable relief without proof of special damages.
10. Indemnities
10.1. Referrer shall on first demand fully indemnify and defend LoyaltyLion (and keep LoyaltyLion fully indemnified) from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising directly or indirectly out of, under, or in connection with any: (a) any third-party claims caused directly or indirectly by Referrer’s breach of these Referral Programme Terms; or (b) claims or allegations that Referrer made a representation or warranty regarding LoyaltyLion or LoyaltyLion Products that is inconsistent with the LoyaltyLion Materials or that is otherwise unauthorized by LoyaltyLion or; (c) breach by Referrer of clauses 4.2, 4.3, 4.8 to 4.10 inclusive, 6, or 8.
10.2. Referrer shall also on first demand fully indemnify and defend LoyaltyLion (and keep LoyaltyLion fully indemnified) from and against any losses suffered or incurred by LoyaltyLion and concerning:
any income tax, National Insurance or social security contributions and/or any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance hereof, plus all reasonable costs, expenses, and any penalty, fine or interest incurred or payable by LoyaltyLion in connection with or in consequence of any such liability, deduction, contribution, assessment or claim; or
any liability for any employment-related claim or any claim based on worker status (including reasonable legal costs and disbursements) brought by any employee, personnel or staff member, director, officer, or representative of Referrer against LoyaltyLion and arising out of/in connection with Referrer’s performance hereof.
10.3. Referrer shall be liable for, and will fully indemnify LoyaltyLion from and against, any costs and damages to third parties incurred by LoyaltyLion which are attributable to any of the events or claims described in clause 10.1 or 10.2, provided that LoyaltyLion: (a) notifies Referrer promptly in writing of its claim for indemnification pursuant to this clause 10.3; (b) gives Referrer the sole authority to defend, compromise or settle the relevant claim; and (c) provides all available information, assistance, and authority at Referrer’s reasonable request and at Referrer’s reasonable expense to enable Referrer to defend, compromise, or settle such claim. Referrer shall diligently pursue any defence required to be rendered hereunder, shall keep LoyaltyLion informed of all significant developments in any action defended by LoyaltyLion, and shall not enter into any settlement affecting LoyaltyLion’s interests without the prior consent of LoyaltyLion.
11. Limitation of liability – Referrer’s attention is drawn to this clause 11
11.1. The extent of the parties’ liability under or in connection with these Referral Programme Terms (regardless of whether such liability arises in tort, contract, or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11. The parties agree that the limitations in this clause 11 are reasonable given each party’s respective commercial positions.
11.2. Subject to clause 11.4, LoyaltyLion’s total liability shall not in the aggregate exceed the value of the total payments actually paid to Referrer by LoyaltyLion in the period of twelve (12) consecutive months immediately preceding the date on which the first event giving rise to such liability occurred.
11.3. Subject to clause 11.4, LoyaltyLion shall not be liable for consequential, indirect or special losses, or for any of the following (in each case whether direct or indirect): (a) loss of profit; (b) loss or corruption of data, software, or information; (c) loss of contract or opportunity; (d) loss of savings, discount, or rebate (whether actual or anticipated); or (e) harm to reputation or loss of goodwill.
11.4. Notwithstanding any other provision of this Agreement, the liability of each party shall not be limited in any way in respect of the following: (a) death or personal injury caused by such party’s negligence; (b) fraud or fraudulent misrepresentation; (c) any claim for indemnification made by the other party pursuant to a provision hereof; (d) any losses caused by wilful misconduct; or (e) any losses which cannot be excluded or limited by applicable law.
12. Terms and termination
12.1. Term. The initial duration of this agreement constituted herein (the “Initial Term“) shall be one (1) year from the date on which Referrer accepts these Referral Programme Terms, subject to earlier termination in accordance herewith. Either party may without cause terminate the agreement constituted by these Referral Programme Terms for convenience by giving at least thirty (30) calendar days’ written notice prior to the other. Where no such notice is given and the agreement has not otherwise been terminated in accordance herewith, then (subject to clause 12.2) upon the expiry of the then-current Initial Term (or the then-current Renewal Term, as applicable), the agreement shall automatically renew for a further one (1) year period (a “Renewal Term“).
12.2. Termination where no Referrals are made. If Referrer does not make any Referral in any twelve-month period, then, at the expiry of such twelve-month period, the agreement constituted by these Referral Programme Terms shall automatically terminate without notice.
12.3. Termination for Breach. Either party may, by giving written notice to the other (such notice having immediate effect), terminate the agreement constituted by these Referral Programme Terms for cause resulting from the material breach by the other party, where: (a) after the terminating party has already given written notice of such material breach to the other party, such material breach (where remediable) has not been remedied within thirty (30) calendar days of such notice having been given; or (b) where such material breach is incapable of remedy.
12.4. Other termination rights. LoyaltyLion may immediately terminate the agreement constituted by these Referral Programme Terms by way of written notice to Referrer (such notice having immediate effect) where Referrer undergoes, or if it is realistically anticipated that Referrer is within the next three (3) months to undergo, a change of Control.
12.5. Effect of Termination. Upon any termination or expiration hereof (for whatever reason): (a) all rights, appointments, and rights granted by LoyaltyLion to Referrer hereunder shall immediately cease to have effect; (b) Referrer shall immediately cease all use of any LoyaltyLion names, branding, trade marks, logos, or other Intellectual Property Rights and LoyaltyLion Materials, and (c) return to LoyaltyLion the LoyaltyLion Materials and all tangible items in Referrer’s possession or under its control containing Confidential Information of LoyaltyLion. For clarity, the expiration or termination hereof for any reason (except in accordance with clause 12.3 for a material breach by Referrer, shall not relieve LoyaltyLion of its obligation to pay Referrer Referral Fees that are payable hereunder with respect to any Eligible Referred Party that has been accepted by LoyaltyLion prior to such expiration or termination. In the event that LoyaltyLion effects termination accordance with clause 12.3 due to a material breach by Referrer, LoyaltyLion’s sole and exclusive obligation to Referrer shall be to pay Referrer the Referral Fees that have accrued up to the date of such material breach.
12.6. Termination or expiry hereof shall not affect any accrued rights and liabilities of either party at any time up to the date of termination, and shall not operate to affect any provisions that expressly or by implication survive termination.
13. General
13.1. Relationship of the parties. The relationship of Referrer and LoyaltyLion is that of independent contractors. Neither party is, nor shall be deemed to be, a partner, joint venturer, agent, employee or legal representative of the other party for any purpose. Neither party shall be entitled to enter into any contracts in the name of or on behalf of the other party, and neither party shall be entitled to pledge the credit of the other party in any way or hold itself out as having authority to do so. No party shall incur any debts or make any commitments for the other, except to the extent, if at all, explicitly provided herein.
13.2. Assignment and subcontracting. Referrer shall not assign, subcontract, delegate, or transfer any of its rights or obligations hereunder in whole or in part (whether by operation of law, change of control, or otherwise) without the prior express written consent of LoyaltyLion, such consent being at LoyaltyLion’s sole and absolute discretion. Subject to the foregoing, these Referral Programme Terms shall be binding upon the respective successors and permitted assigns of the parties. Any assignment in violation of the foregoing shall constitute a material breach hereof and shall be null and void.
13.3. Governing law and jurisdiction. These Referral Programme Terms shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
13.4. Notices. Except as set forth herein, all notices and other communications hereunder shall be delivered by email: (a) if to Referrer, at the email address provided by Referrer in its most recent Sales Lead Registration Application; or (b) if to LoyaltyLion, at the following email address: partnerships@loyaltylion.com. Referrer is responsible for providing LoyaltyLion with its most current email address. In the event that the last email address Referrer provided to LoyaltyLion is not valid, or for any reason is not capable of delivering to Referrer any notices required or permitted herein, LoyaltyLion’s dispatch of the email containing such notice will nonetheless constitute effective notice. Notice shall be deemed to have been duly given on the first business day in England occurring after the day on which such notice was sent by email. No notice given by Referrer shall deemed to have been given to LoyaltyLion where Referrer receives any error message, out-of-office or other automated reply, bounce-back, or other notification of a failure of or delay in relation to the email containing such notice within forty-eight (48) hours of attempted transmission.
13.5. Amendment. LoyaltyLion may amend this Agreement (or any document referred to in it) from time to time, in which case the new Agreement will supersede prior versions for any future Referrals. LoyaltyLion will notify Referrer of such changes through a notification by email with directions to the latest version. The updated Agreement will become effective and binding on the next business day after it is posted. When LoyaltyLion changes this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. LoyaltyLion encourages the Referrer to review this Agreement periodically. LoyaltyLion may require the Referrer to agree to the updated Agreement in a specified manner before further participation in the Referrer Programme is permitted. If the Referrer does not agree with a modification to this Agreement, the Referrer must notify LoyaltyLion in writing within thirty (30) days after receiving notice of modification. If the Referrer gives LoyaltyLion this notice, this Agreement will terminate thirty (30) days after LoyaltyLion receives this notice and our relationship for any pre-existing Referrals will continue to be governed by the terms and conditions of the version of this Agreement applicable at the time each Referral was made. Otherwise, the Referrer’s continued participation in the Referrer Programme constitutes Referrer’s acceptance of such change(s).
13.6. Waiver. No provision of the Agreement unless such provision otherwise provides shall be waived by any act, omission, or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party.
13.7. Severability. Whenever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of these Referral Programme Terms.
13.8. No third-party rights. No one other than LoyaltyLion and Referrer (or their respective successors and permitted assignees) shall have any right to enforce any of these Referral Programme Terms.
13.9. Construction. As used these Referral Programme Terms, the singular shall include the plural and vice versa, and the terms “include” and “including” shall be deemed to be immediately followed by the phrase “without limitation.” The captions and headings in these Referral Programme Terms are inserted for convenience and reference only and in no way define or limit the scope or content of hereof and shall not affect the interpretation of its provisions.
13.10. Entire Agreement. The Referral Programme Terms constitute and contains the complete, final and exclusive understanding and agreement of the parties in relation to the subject matter hereof and extinguish and supersede any and all prior negotiations, warranties, representations, correspondence, understandings, and agreements (whether oral or written) between the parties relating to the same. Each party irrevocably and unconditionally waives any rights it may have to claim damages or to rescind the agreement governed by these Referral Programme Terms for any misrepresentation or for breach of any warranty not contained herein, unless such misrepresentation or warranty was made fraudulently.
Schedule 1
EU SCCs
1. Incorporation of the EU SCCs
1.1 To the extent clause 8.16 applies and the transfer is made pursuant to the GDPR, this Schedule 1 and the following terms shall apply: Module 1 of the EU SCCs and no other optional clauses unless explicitly specified, are incorporated into this Schedule 1 as if they had been set out in full in the case where the exporter is a Controller, the importer is also a Controller and the transfer requires such additional protection.
2. Clarifications of the EU SCCs
2.1. For the purposes of clause 8.2 of the EU SCCs and to enable Data Subjects to effectively exercise their rights, the parties have agreed that the exporter shall inform Data Subjects of the information required.
2.2. For the purposes of clause 8.3 of the EU SCCs the parties hereby agree that the exporter shall be primarily responsible for ensuring that Personal Data is accurate and, where necessary, kept up to date. The exporter shall take every reasonable step to ensure that Personal Data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
3. Processing particulars for the EU SCCs
The parties
3.1. Exporter (Controller): LoyaltyLion
3.2. Importer (Controller): Referrer
Description Of Data Processing
3.3. Categories of data subjects: Sales Leads.
3.4. Categories of personal data transferred: Contact Data.
3.5. Sensitive data transferred: None.
3.6. Frequency of the transfer: Continuous.
3.7. Nature of the processing: Collection, recording, storage, use and disclosure as set out at clause 8.3 of these Referral Programme Terms.
3.8. Purpose of the processing: To fulfil the obligations or receive the benefits under these Referral Programme Terms.
3.9. Duration of the processing: For the duration of the Agreement.
3.10. Competent Supervisory Authority: The Irish Data Protection Commissioner.
3.11. Technical and Organisational Measures: As set out at clause 8.10 of these Referral Programme Terms.
Schedule 2
UK ADDENDUM
1. Parties. As set out in Schedule 1.
2. Selected SCCs, Modules and Clauses. Module 1 of the EU SCCs and no other optional clauses unless explicitly specified, and as amended by the clarifications in Schedule 1, paragraph 2, but subject to any further amendments detailed in this Schedule 2.
3. Appendix Information. The processing details required by the UK Addendum are as set out in Schedule 1, paragraph 3.
4. Termination of the UK Addendum. In the event the template UK Addendum issued by the Information Commissioner’s Office and laid before Parliament in accordance with Section 119A of the Data Protection Act 2018 on 2 February 2022 as it is revised under section 18 is amended, either party may terminate this Schedule 2 on written notice to the other in accordance with Table 4 and paragraph 19 of the UK Addendum and replace it with a mutually acceptable alternative.
Managing your program
