Local by ISPT Retailer Agreement
Local by ISPT is a loyalty program operated by ISPT Pty Ltd ACN 064 041 283 (“ISPT”) and its related bodies corporate from time to time.
This Agreement sets out the terms and conditions pursuant to which ISPT engages the Retailer to appoint the Retailer as a Local by ISPT Retailer and upon which the Retailer shall participant in the Local by ISPT retail program in accordance with the Agreement on and from the Commencement Date, subject to the Retailer complying at all times with, the terms and conditions of this Agreement.
Local by ISPT Retailer Agreement – Terms and Conditions
In this Agreement:
“Account” means the account that the Retailer creates when it accesses the Local by ISPT platform and/or software, including via the App and Third Party App, in order to participate in the Program as a Local by ISPT retailer;
“App” means the ISPT smartphone application incorporating Local by ISPT (available on iOS and Android);
“Commencement Date” means the date on which the Program commences, being the date the Retailer creates an Account on the App and/or any Third Party App or such later date as determined by ISPT in its absolute discretion, and in respect of each Benefit, means the date specified in the App or otherwise agreed between the parties from time to time;
“Confidential Information” means this Agreement and any information described in the Agreement, the Material (including Project IP), and any information disclosed to the Retailer or Retailer Personnel for or in connection with this Agreement which is known to be confidential, or ought reasonably have been known to be confidential, to ISPT or to third parties who have provided that information to ISPT;
“Expiry Date” means 30 June 2019 (being the end of the pilot period) or such later date as the parties may agree in writing;
“GST” means any form of goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“IP Rights” includes and all industrial and intellectual property rights including all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in and in relation to Inventions, patents, designs, copyright, trademarks, trade names, brands, logos;
“ISPT Inputs” means the App and any other inputs or contributions ISPT may specify to the Retailer in writing from time to time, including via the App, in connection with this Agreement;
“ISPT Material” means any Material that ISPT makes available to Retailer for the purpose of this Agreement, or that relates to the affairs of ISPT and any of its agents, contractors or clients and is obtained by Retailer under, or in contemplation of or as a result of, this Agreement;
“Marketing Material” means any Material that advertises or promotes: (a) the goods or services of one of the parties to this Agreement; and/or (b) the Program, and/or, in the case of Retailer, Retailer's participation in the Program, or provides information to Members regarding Benefits;
“Material” means artwork, copy, models, designs, photographs, film, character, music, voice-over, sound recordings, performance, logos, or any other material protected by IP Rights.
“Members” means individuals who participate in the Program, including members of the App;
“Personal Information” has the same meaning as in the Privacy Act 1988 (Cth);
“Personnel” means, in relation to a party, the officers, employees, contractors (including subcontractors) and agents of that party (but, in the case of ISPT, excludes the Retailer);
“Plutus” means Plutus Commerce Pty Ltd (ABN 64 603 522 505);
“Privacy Laws” means he Privacy Act 1988 (Cth) (including the Australian Privacy Principles enacted under that Act), the Spam Act 2003 (Cth) and any other Laws or industry codes relating to the use, handling, distribution and/or storage of Personal Information;
“Program” means the loyalty and benefit program operated by ISPT, known as "Local by ISPTTM";
“Program Materials” means Materials created by or on behalf of Retailer, at the request of ISPT, specifically for the purposes of the Program;
“Retailer Inputs” means the services and activities to be undertaken and completed by Retailer in order that relevant Benefits (or entitlements to obtain Benefits) may be claimed by Members;
“Retailer Marks” means the business names, logos and trade marks (registered and unregistered) of the Retailer that the Retailer uploads for use in the App or gives to ISPT in connection with this Agreement;
“Retailer Materials” means Materials created by or on behalf of the Retailer, but excludes Program Materials;
“Soldi App” means the application known as Soldi which is a software as a service application provided by Plutus directly to the Retailer.
“Taxes” means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged, together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to their imposition;
“Term” means the period of this Agreement commencing on Commencement Date and ending on Expiry Date; and
“Third Party App” means a cloud based app operated by a third party that provides the Retailer with access to participate in the Program, including the Soldi App.
(a) ISPT grants the Retailer the right to participate in the Program subject to the terms and conditions of this Agreement.
3. Warranties by Retailer
The Retailer represents and warrants to ISPT:
(a) at all times, it shall be authorised to offer the Benefits, and will at all times maintain the capacity to honour such Benefits when they are redeemed and utilised by Members;
(b) it has in place systems and resources necessary to fulfil its obligations under this Agreement;
(c) it is authorised to enter into this Agreement, and to give effect to each of the promises and undertakings made by it under this Agreement;
(d) the Retailer will comply with all of ISPT’s policies and guidelines relevant to participation by the Retailer in the Program (if any);
(e) on each day during the Term, it is not in breach of any lease or occupation or other agreement with ISPT or any of its related bodies corporate;
(f) the Retailer warrants it is entitled to use any IP Rights, which are or may be used by it in connection with the Program;
(g) the Retailer will only use the ISPT Marks and ISPT Material with the prior written approval of ISPT; and
(h) any Materials, including Marketing Material, prepared or used by the Retailer in connection with the Program will not infringe on the IP Rights of any third party.
4. Acknowledgments by Retailer
The Retailer acknowledges and agrees:
(a) In order to participate in the Program, the Retailer must be a person who:
(i) is a retailer within an eligible retail complex of ISPT;
(ii) is not in default in respect of any lease, occupation agreement or other agreement with ISPT or any of our related bodies corporate or associated entities;
(iii) possesses devices able to access any Local by ISPT computer systems or platforms, including a smartphone device operating iOS or Android;
(iv) has installed any necessary software and/or the App on such devices;
(v) has created a retailer Account on the App and/or any Third Party App; and
(vi) has agreed to be bound by this Agreement.
(b) ISPT does not provide any warranty, or assume any responsibility regarding the quality, accuracy, source, merchantability, fitness for purpose or any other aspect of the material on the App or Third Party App (including Soldi).
(c) ISPT makes no promises or representations, and gives no undertakings, as to:
(i) the operation, suitability, or availability of the App or Third Party App (including Soldi);
(ii) the operation or availability of the App the extent to which Members will redeem and/or utilise Benefits;
(iii) sales, revenue or profits that will be generated by Retailer as a result of its entry into this Agreement, and its participation in the Program; or
(iv) any other benefits to Retailer derived as a result of its entry into this Agreement, and its participation in the Program.
(d) The Retailer is solely responsible for activities that occur on the Account.
(e) Irrespective of whether ISPT has consented to particular Marketing Materials that are or have been produced, issued, communicated or distributed by Retailer, ISPT may, in writing, direct Retailer to withdraw such Marketing Materials, and cease any further issue, publication, communication or distribution of such Marketing Materials if, in ISPT's opinion, those Marketing Materials may adversely affect its business reputation, the products and services offered by it or the Local by ISPT Program. Where such direction is issued to the Retailer, Retailer must immediately comply with it.
(f) The Retailer’s password to the Account is confidential.
(a) Each Benefit will be subject to the terms, conditions and limitations applicable to that Benefit that, subject to the prior approval of ISPT, are specified in the App from time to time (Promotion Terms), and Retailer is obliged to honour (and ensure that Retailer Entities honour) a Benefit only to the extent such Benefit is valid and capable of being exercised under those terms, conditions and limitations.
(b) The Retailer must comply with the Promotion Terms.
(c) Retailer must, and must ensure that all Retailer Personnel will, honour all Benefits duly redeemed by Members during the Term.
(d) The parties acknowledge that, during the Term, they may wish to add to or change the Benefits, or replace existing Benefits with new ones, but without varying these terms and conditions. Such additions, changes or replacements may be determined by the parties in consultation with each other or via the App.
6. Retailer’s duties
(a) The Retailer must not do or permit to be done any act or omission which may be detrimental or harmful to the good name or reputation of ISPT and must comply with ISPT’s workplace policies, procedures and other related documents (as advised from time to time).
(b) Without limiting its obligations under clause 6(c), Retailer undertakes that goods and/or services supplied by it, through a Member's utilisation of a Benefit redeemed by it, will be of the same quality, merchantability and fitness for purpose as those which are supplied by Retailer to the general public on an arms-length basis.
(c) The Retailer must comply with all laws and ensure it does not cause ISPT to be in breach of any law.
(d) The Retailer must use reasonable commercial endeavours to promote the App.
(e) Subject to complying with its obligations in this Agreement, Retailer must use all commercially reasonable endeavours to reach a timely outcome, in response to a complaint or issue of a Member in respect of the Program of which it is notified, that is satisfactory to ISPT and the relevant Member.
7. Copyright and other IP Rights
(a) ISPT grants to Retailer a non-exclusive, non-transferable, revocable, royalty-free licence to use in Australia registered and unregistered trade marks owned by, or licensed to, ISPT from time to time (“ISPT Marks”) and to use, reproduce modify and communicate ISPT Materials solely for the purpose advertising and promoting the Program to Members and to the public during the Term in accordance with this Agreement.
(b) Retailer must not sublicense the rights granted in clause 7(a) to any person without the prior written authorisation of ISPT.
(c) Any Materials, in whatever format or medium, produced by or on behalf of Retailer which include any of the ISPT Marks must be approved by ISPT in writing prior to their publication or dissemination. Without limiting its rights available under applicable Laws, ISPT may, at any time, withhold or withdraw approval for publication or dissemination of such Materials if it believes the form of the Materials or their proposed use is inappropriate, incorrect, illegal or may damage ISPT's reputation or image in any way.
(d) Retailer must ensure that all Materials which include any of the ISPT Marks are:
(i) produced in a professional manner and with due care and skill; and
(ii) free from defects and errors, and of merchantable quality and fit for their intended purpose.
(e) Retailer must comply with all conditions, directions and specifications of ISPT of which ISPT notifies it from time to time in writing in connection with the use of ISPT Marks (including, the size, font, colour and positioning of such ISPT Marks) or ISPT Materials.
(f) The ISPT Marks and ISPT Material, and the IP Rights subsisting in them from time to time, are, and will remain, the exclusive property of ISPT. All goodwill and reputation arising from the use of ISPT Marks or ISPT Material will accrue to ISPT.
(g) Retailer will not commit or permit any act or course of conduct, or use the ISPT Marks or permit them to be used in any manner which may:
(i) deceive or cause confusion in trade;
(ii) bring the ISPT Marks or the business of ISPT into disrepute;
(iii) jeopardise or dilute the exclusiveness or distinctiveness of ISPT Marks; or
(iv) have an adverse effect on the goodwill or the value of the ISPT Marks.
(h) Retailer grants to ISPT a non-exclusive, non-transferable, royalty-free licence to use reproduce, modify, adapt and communicate in Australia the Retailer Marks and Retailer Materials for the purposes of:
(i) advertising and promoting the Program to Members and to the public;
(ii) advertising and promoting the Benefits to Members;
(iii) producing or generating Materials through which Members redeeming Benefits may acquire goods and services from Retailer; and/or
(iv) making disclosures or notifications required by applicable Laws,
such licence will include a right for ISPT to grant sublicences for the same purposes.
(i) ISPT may sublicense the rights granted to ISPT under clause 7(h) to those contractors engaged by it from to time to:
(i) operate and/or manage the Program;
(ii) manage, or provide services in respect of, the software platform or smartphone apps through which Members access information about, and/or redeem benefits through, the Program;
(iii) undertake marketing and promotion for ISPT; and/or
(iv) produce marketing and promotional material in respect of ISPT and/or the Program.
(j) Retailer warrants that use of the Retailer Marks, and/or Materials produced by or on behalf of Retailer, by ISPT in accordance with this Agreement will not infringe the IP Rights, or other rights, of any person.
(k) Subject to the licences granted to Retailer under this Agreement, all IP Rights subsisting in:
(i) the Program;
(ii) data generated or maintained by or on behalf of ISPT through the conduct and operation of the Program, including with respect to redemptions of Benefits effected by Members and Member data;
(iii) the website and smartphone app developed, operated and maintained by or on behalf of ISPT for the purposes of the Program, as modified, adapted or replaced from time to time; and
(iv) all ISPT Materials, and any modifications, adaptations or derivatives of, or improvements to, such ISPT Materials,
are the property of ISPT.
(l) Subject to the licences granted to ISPT under this Agreement, all IP Rights subsisting in Retailer Materials created by or on behalf of Retailer before or during the Term, including any modifications, adaptations or derivatives of, or improvements to, such Materials, are the property of Retailer.
(m) All rights, title and interest in Program Materials, including IP Rights, are assigned to ISPT upon their creation.
(n) ISPT grants to Retailer a non-exclusive, non-transferable, revocable and royalty-free licence to use, reproduce, communicate and modify Program Materials and sublicense the contractors of the Retailer to do so, solely for the purposes of Retailer fulfilling its obligations under this Agreement.
(o) To the extent individuals are entitled to assert ay moral rights (as conferred under the Copyright Act 1968 (Cth), or equivalent legislation of another jurisdiction), Retailer must obtain from its Retailer Personnel who are authors of Materials in which copyright subsists, and which is assigned, licensed or supplied to ISPT under this Agreement, all necessary consents and waivers, in writing, authorising any act or omission by ISPT that would otherwise infringe such individuals' moral rights.
8. Confidential Information
No Confidential Information may be disclosed by the Retailer to any person except:
(a) the Retailer Personnel, who necessarily require the information for the delivery of any goods or performance of any services in connection with the Program;
(b) with the prior written consent of ISPT, which consent may be given or withheld in its absolute discretion;
(c) if the Retailer is required to do so by law (except to the extent the requirement can be excluded or limited by a contract or by a confidentiality obligation) or by any recognised stock exchange on which its shares or the shares of any of its related bodies corporate are listed; or
(d) if the information is in the public domain, other than by breach of this Agreement.
(b) The Retailer must not collect sensitive information about an individual, unless the collection is necessary for the purposes of the Program and the Retailer has obtained the consent of the individual about whom the sensitive information relates.
(c) Without limiting any other clause of this Agreement, if the Retailer becomes aware of, or has a reasonable suspicion that there has been any unauthorised access to, or disclosure or loss of, any Personal Information that has been collected from or on behalf of ISPT, directly or indirectly, pursuant to this Agreement (“Breach”), the Retailer: (i) must notify ISPT immediately and co-operate fully with ISPT or any appointed authority in investigating the Breach and notifying any relevant parties; and (ii) acknowledges that ISPT will have sole discretion with regards to the assessment of the effect of the Breach, any determination of any plan or process to remedy the Breach and whether any further action should be taken following the Breach, including, without limitation, the notification (if any) and method of notification to any regulator or law enforcement agency or the affected individuals.
10. Liability, indemnity
(a) Without limiting any other right or remedy of ISPT, the Retailer indemnifies and holds ISPT and its officers, employees, agents, representatives and sub-contractors harmless against any liability to or claim by a third party (including Retailer Personnel) and all costs, fines, penalties, losses and damage suffered or incurred by ISPT (including but not limited to loss of or damage to property of ISPT) arising directly or indirectly out of or in connection with any:
(i) breach of this Agreement;
(ii) intentional act or omission;
(iii) unlawful or negligent act, error or omission;
(iv) breach of IP Rights of any third party; or
(v) breach of any warranty contained in this Agreement,
by the Retailer or Retailer Personnel.
(b) The indemnity in clause 10(a) will be reduced proportionately to the extent that any wilful or negligent act or omission of ISPT contributed to the liability, costs, fines, penalties, losses or damages.
(c) The indemnity in clause 10(a) is a continuing obligation separate and independent from the Retailer’s other obligations and will survive expiration or earlier termination of this Agreement.
11. Taxes, GST
All Taxes (including GST) imposed or levied in connection with this Agreement or any transaction contemplated by this Agreement will be borne by Retailer
(a) If the Retailer defaults in the performance or observance of any obligation on its part contained in this Agreement and such default is not remedied within 10 business days of written notification from ISPT that it requires that default to be remedied then ISPT may in its discretion terminate this Agreement and/or suspend participant in the Program by the Retailer and without limitation may recover from the Retailer an amount for any loss or damage suffered by ISPT.
(b) Either party may, in its absolute discretion, terminate this Agreement at any time, for convenience, by giving 30 days’ notice to the other party (or such other period as mutually agreed between the parties in writing).
(c) On completion or cessation of the Program or on termination of this Agreement, the Retailer must:
(i) promptly return/deliver to ISPT all Confidential Information and any copies thereof;
(ii) delete, erase, or otherwise destroy any of ISPT’s Confidential Information in the Retailer’s or Retailer Personnel’s possession or under its control that is not capable of delivery to ISPT; and
(iii) the Material and Project IP produced by the Retailer up to the date of termination or completion.
(a) Any notice to be given under this Agreement must be in writing and is given for all purposes by email addressed to the receiving party:
(i) in the case of ISPT to: hello@localbyISPT.com.au; and
(ii) in the case of the Retailer: to the email address used to create the Account.
(b) Any notice given in accordance with this Agreement will be deemed to have been duly served on the first business day after the date of transmission (providing the sending party does not receive an undelivered notice and no objection is received from the recipient).
14. Limitation of liability of ISPT
(a) For the purposes of this clause 14, the following words have the following meaning:
(i) Assets includes all assets, property and rights real or personal of any nature whatsoever.
(ii) Obligations means all obligations and liabilities of whatever kind undertaken or incurred by or devolving upon ISPT under or in respect of this Agreement, or any deed, or other agreement or other instrument collateral with this Agreement or given or entered into under this Agreement including, without limitation, in respect of a breach of any undertaking, representation or warranty.
(b) The Retailer acknowledges ISPT enters into this Agreement in its capacity as trustee of one or more trusts and ISPT’s Obligations under this Agreement are incurred by ISPT solely in its capacity as trustee of one or more trusts.
(c) Except in the case and to the extent of a reduction in the extent of ISPT’s indemnification out of the Assets of a relevant trust as a result of ISPT’s fraud, negligence, breach of trust or breach of duty:
(i) ISPT is not liable to pay or satisfy an Obligation out of any Assets out of which ISPT is not entitled to be and is in fact not indemnified in respect of any liability incurred by it as trustee of the relevant trust;
(ii) the Retailer may enforce its rights against ISPT arising from or in connection with the non-performance of its Obligations only to the extent of ISPT’s (as trustee) right of indemnity out of the Assets of the relevant trust; and
(iii) the Retailer waives its rights and releases ISPT from any personal liability whatsoever in respect of any claim, loss, cost, damage, liability or other detriment which it may suffer or incur as a result of any:
(A) breach of this Agreement by ISPT; or
(B) non-performance by ISPT of ISPT’s Obligations,
which cannot be paid or satisfied out of the Assets out of which ISPT is entitled to and is in fact indemnified in respect of the breach or non-performance by it as trustee of the relevant trust.
(d) No representative, attorney, agent or other person appointed by ISPT for the purposes of this Agreement has authority to act on behalf of ISPT in a way which exposes ISPT to any personal liability and no act or omission of such a person will be considered fraud, negligence, breach of trust or breach of duty by ISPT for the purposes of clause 14(c).
(a) The Retailer may not assign, transfer or novate this Agreement or any rights or obligation of this Agreement without the prior written consent of ISPT.
(b) ISPT may, without the consent of the Retailer, assign its right, title and interest in the Agreement to any third party upon provision of written notice to the Retailer and, without limiting the foregoing, the Retailer must do all things necessary to give effect to a novation of this Agreement.
(a) If any provision of this Agreement is illegal, void, invalid or unenforceable for any reason, all other provisions which are self-sustaining and capable of separate enforcement will, to the maximum extent permitted by law, be and continue to be valid and enforceable.
(b) A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
(d) This Agreement cannot be amended except in writing executed by all parties.
(e) Each party must promptly execute all documents and do everything necessary or desirable to give full effect to the arrangements contained in this Agreement.
(f) Any right or obligation of any party that is expressed to operate or have effect on or after the completion, expiration, suspension or termination of this Agreement for any reason, will not merge on the occurrence of that event but will remain in full force and effect.
(g) Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
(h) This Agreement takes effect, is governed by, and will be constructed in accordance with the laws from time to time in force in Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.
(i) In this Agreement, a reference to a statute includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.
(j) Clauses 1, 3, 7, 8, 9, 10, 11, 12, 13, 14 and 16 and any other clauses which by their nature survive, including without limitation any obligations, representations and warranties in these clauses, will survive the suspension or completion of the Program, rescission, termination or expiry of this Agreement.
ISPT, 8 EXHIBITION STREET, MELBOURNE, VIC, 3000, AUSTRALIA0436 024 815HELLO@LOCALBYISPT.COM.AU