Terms and Conditions of the Merchant Agreement

1. Introduction

The Suelon Loyalty Programme (the “Programme”) is a loyalty and change concept operated by Suelon Limitedhaving its registered office at 5 Yawl Business Park, Youghal, Co. Cork, Ireland with company number 574033 and VAT number IE3402456PH (“Suelon”).

Subject to these terms and conditions (the “Terms”), under the Programme trade customers who are in business as retailers (“Loyalty Merchants”) can apply to sign-up to a loyalty account so as to receive certain benefits (“Account”) by registering all requisite details with Suelon and nominating a retail outlet that is participating in the Programme as the relevant home store (“Home Store”). Loyalty Members (“Loyalty Members”) will be issued with a Suelon loyalty card in either physical form or via a Mobile App (the “Account Card”) and, where required, further Suelon loyalty cards (either in physical form or via the Suelon mobile app (“Mobile App”)) for use by the authorised employees (“Authorised Users”) of the Loyalty Member (the “Authorised User Cards” and together with the Account Cards, the “Loyalty Cards”). The Loyalty Member and Authorised Users can start earning points (“Points”) immediately upon receipt of the Loyalty Cards by using his/her Loyalty Cards in retail outlets that are participating in the Programme from time to time (“Retailers”). Loyalty Members who sign up for an Account will have the Account activated for spending points within [insert appropriate time frame].

These Terms govern your participation in the Programme and the use of your Loyalty Cards. They also set out the terms of the contract between Suelon and the Loyalty Member. Please read them carefully and keep a copy for future reference. If a Loyalty Member has any questions about these Terms or his/her participation in the Programme, then please contact [insert relevant details].

Goods and Services may be purchased by Loyalty Members directly from Loyalty Merchant, online through the Suelon portal or by patroning the Loyalty Merchant’s facility. Information regarding those purchases will be supported through an internet service between the Loyalty Member and the Loyalty Merchant (e.g. internet merchant, retail merchant, or mobile service provider) associated with Suelon. Transactions will take place via Suelon Smartcards as well as mobile App. Any Loyalty Member may use the Programme.

These Terms comprise the basis of agreement between Suelon and the Loyalty Merchant and any definition which appears on the Suelon Website as well as any other explanations provided in the “Suelon Loyalty Program” are part of these Terms and are incorporated herein by reference. Furthermore, Suelon shall be authorised to designate agents to act on its behalf. Loyalty Merchant understands that Suelon cannot begin performance until such time that Loyalty Merchant provides Suelon with all required information as provided for in the Merchant Application including written descriptions, logos, trademarks, taglines, etc.

2. The Programme

(i) The physical Loyalty Cards remain the property of Suelon and use of the Mobile App is subject to the permission of Suelon. Suelon reserves the right to decline, issue or withdraw access to the Loyalty Cards at any time, or to alter, amend or terminate the Programme or these Terms at any time without prior notice. Loyalty Merchants who are participants in the Programme may be removed from the Programme at any time at the discretion of Suelon.

(ii) All Loyalty Merchants in the Programme must be trade professionals of at least 18 years old on the date of issue of his/her Loyalty Cards and must be resident in the Republic of Ireland. Eligibility to participate in the Programme shall be determined at the sole discretion of Suelon.

(iii) Suelon staff members are excluded from participating in the Programme.

(iv) Except as notified from time to time, Loyalty Cards (whether in physical form or via the Mobile App) can be used to earn Points in all participating Loyalty Merchants’ stores in the Republic of Ireland. The Loyalty Member can spend points in [participating stores] of other Loyalty Members or, where applicable, for rewards online at www.suelon.com or via the Mobile App. A Home Store can be altered by the Loyalty Member no more than once every 12 months. Suelon reserves the right to alter the Home Store linked to an Account at any time in its sole discretion for operational reasons.

(v) Participation in the Programme is personal to the Loyalty Member. A Loyalty Member is responsible for the proper use and security of all Loyalty Cards and Points that are linked to his/her Account. Loyalty Members cannot share or transfer his/her Points. In circumstances where a Loyalty Member opts to provide Authorised User Cards to Authorised Users, the Loyalty Member agrees that they are solely responsible for the actions of such Authorised Users, including any use of the Authorised User Cards in any manner which contravenes these Terms or any mistaken use of the Authorised User Cards. Suelon shall not be responsible for use of the Authorised User Cards in a manner which would contravene these Terms or for any incorrect or mistaken use of an Authorised User Card by an Authorised User.

(vi) Suelon may immediately suspend or terminate the rights of any Loyalty Member and/or close an Account if:
(a) these Terms are breached by a Loyalty Member or Authorised User; or
(b) Suelon reasonably believes that a Loyalty Member or Authorised User has acted in a manner not permitted by these Terms; or
(c) a Loyalty Member or Authorised User engages in (or Suelon reasonably suspects him/her of engaging in) any theft from or misconduct in connection with Suelon or any of its suppliers or any other Loyalty Merchant; or
(d) a Loyalty Member or Authorised User supplies false or misleading information to Suelon or Suelon discovers that a Loyalty Member or Authorised User is not eligible to participate in the Programme; or
(e) a Loyalty Member or Authorised User is abusive or offensive to any member of Suelon or any member of a Loyalty Merchant’s staff.

(vii) A Loyalty Member can also close his/her Account at any time by notifying Suelon in writing. If an Account is closed for any reason, all rights to spend the Points in that Account are lost.

(viii) If a Loyalty Member or Authorised User returns products/purchases which he/she has bought with cash or with a credit/debit card and presented his/her Loyalty Card (whether in physical form or via the Mobile App) during the purchase transaction, the Loyalty Member or Authorised User must present his/her Loyalty Card (whether in physical form or via the Mobile App) to the Retailer when returning the products/purchases and the Loyalty Merchant shall effect a deduction of the Points earned on the Account that relates to such returned products/purchases.

(ix) If a Loyalty Member or Authorised User exchanges products/purchases then Suelon is also entitled to cancel these Points, unless he/she exchanges for products/purchases with an equivalent Points value. If a Loyalty Member or Authorised User exchanges for products/purchases with a lower Points value then Suelon is entitled to deduct the balance of the Points from the Account that relates to such exchanged products/purchases.

(x) If a Loyalty Member’s Account has been inactive (i.e. the Loyalty Member has not used his/her Loyalty Card (whether in physical form or via the Mobile App) to earn or spend Points) for a period of 12 months, Points or any spend value on the Account will expire and will be removed.
3. The Obligations of the Loyalty Merchant

(i) The Loyalty Merchant is expressly obligated to charge all Loyalty Members the same prices and rates that it charges all of its other customers and, in particular, to ensure that the Loyalty Merchant grants Loyalty Members any special discounts that are being offered (e.g., in connection with seasonal or clearance sales) to the general public.

(ii) For the duration of this Merchant Agreement, the Loyalty Merchant is granted a non-exclusive and limited license to use the name “Suelon” and Suelon trademarks wholly and exclusively for the purposes of this Merchant Agreement and only as permitted by Suelon. Any use of or any promotional activities using the name “Suelon” and/or Suelon trademarks require the express prior written consent of Suelon.

(iii) The Loyalty Merchant agrees to display Suelon POS (Point of Sale) advertising material provided to the Loyalty Merchant by Suelon in a clearly visible location at both the entrance area and checkout area of any relevant premises. Furthermore, Loyalty Merchant agrees to inform customers and Loyalty Members that it is a Loyalty Merchant by also displaying such material as may be provided by Suelonfor such purpose in each of its business premises.

4. Suelon Smartcard

(i) The Suelon Smartcard facilitates the collection and transmission of a Loyalty Member’s basic information by electronic means using a card reading system. Basic information consists of the Loyalty Member’s full name, address, phone number and email address. It cannot be used to make payments (including any electronic payments).

(ii) The Loyalty Member will submit his/heSuelonSmartcard to the Loyalty Merchant when paying. The Loyalty Merchant uploads the basic data of the transaction (customer information, date, purchase amount and Loyalty Merchant information) via a terminal (or PC, PDA) which will transmit the data to the Suelon server. Suelon will subsequently transmit an invoice for the benefit and applicable sales taxes including a detailed report to the Loyalty Merchant to their online office according to the Terms of this Agreement.

(iii) Suelon does not assume any liability for transmission errors that are not within its scope of responsibility or that were caused by a third party. Purchase information must be transmitted collectively at one time and any deadlines/timelines for transmission of information, rebate payments and the like, must be strictly adhered to. Manual transmission of purchase information by electronic means must be done in a manner that ensures the reusability of the data.

5. Rebate

(i) Loyalty Merchant and Suelon have agreed on a rebate (as stipulated in the Merchant Application), whose terms are incorporated herein by reference, to be paid for the purchase of goods and services to a Loyalty Member by the Loyalty Merchant, through the Programme. The agreed rebate is paid on relevant gross sales (i.e. net purchase price of goods and services paid by the Loyalty Member including sales tax but excluding shipping and handling).

(ii) The Loyalty Merchant hereby irrevocably covenants and undertakes to treat the amount of the rebate as Confidential Information and shall not disclose such information to any of its employees, other personnel, customers, Loyalty Members or any other third parties. A breach of confidentiality shall be a material breach of contract entitling Suelon to immediately terminate this Merchant Agreement along with other remedies Suelon may have available at law or equity.

6. Customer Claims Arising from Default in Performance

(i) The contractual relationship regarding the purchase and delivery of goods by the Loyalty Merchant and services provided by the Loyalty Merchant exists solely between the Loyalty Merchant and the Loyalty Member. The Loyalty Merchant is therefore solely responsible for fulfilling its contractual obligations to the Loyalty Member. The Loyalty Merchant shall be solely liable for any claims asserted by the Loyalty Member for breach of warranty, damages, errors, or any other claims arising from any alleged failure to perform or default in performance.

(ii) In the event that any claim howsoever arising is brought against Suelon with regard to a matter in respect of which the Loyalty Merchant is responsible, the Loyalty Merchant shall fully indemnify and hold Suelon harmless for any and all claims and for all losses and costs arising in respect thereof.

7. Liability

(i) Suelon shall incur no liability whatsoever by and pursuant to this Merchant Agreement save and except in a case of gross negligence or fraud. Any other and/or additional claims for damages by the Loyalty Merchant howsoever arising are expressly and irrevocably waived and released.

(ii) Should the Loyalty Merchant provide the option of ordering or purchasing goods or services via electronic media using the services of a third party (provider), then the Loyalty Merchant shall be liable for any damages caused by the third party, regardless of the degree of fault and the legal relationship existing between Suelon, the Loyalty Merchant and the third party. The selection of a third party shall always be entirely attributable to the Loyalty Merchant. The Loyalty Merchant indemnifies and holds Suelon harmless with regard to any claims which may arise from a third party.

(iii) The Loyalty Merchant shall have no right to claim any damages from Suelon unless such damages were caused by gross negligence or fraud on the part of Suelon. If a claim in damages is alleged to subsist, the Loyalty Merchant shall not be entitled to any damages resulting from a price reduction regarding the connection and service charges to be paid by the Loyalty Merchant.
(iv) Insofar as permitted by law, neither Suelon nor its agents or distributors willbe responsible or liable to compensate the Loyalty Member or Authorised User or other bearer, or accept any liability, for any personal loss or injury occurring whilst participating in the Programme. Suelon does not guarantee the quality and/or availability of the goods or services offered when participating in the Programme and cannot be held liable for any resulting personal loss or damage.

8. Term and Termination of this Merchant Agreement

(i) This Merchant Agreement shall continue until terminated in writing. Termination shall occur by either party to the Agreement sending a notice of termination to the other. A notice of termination shall be issued on the last day of a calendar month giving notice of termination effective three (3) calendar months after it is sent. All provisions of this Agreement shall remain valid until the date of termination and insofar as any provisions are expressed in this Agreement to survive termination.

(ii) Suelon shall have the right to terminate this Merchant Agreement at any time without notice in the event of a material breach of the Merchant Agreement by the Loyalty Merchant, or for any other good cause.

(iii) Suelon shall be entitled to immediately terminate this Merchant Agreement without notice in the event Loyalty Merchant (being a corporate) becomes insolvent, (or being a natural person) initiates bankruptcy proceedings or becomes subject to an assignment for the benefit of his/her creditors, or Suelon has good reason to believe the Loyalty Merchant lacks the requisite assets to continue in business.

(iv) Upon termination of this Merchant Agreement, the Loyalty Merchant shall immediately remove any labels and information referring to the Merchant Agreement and/or to its status as a Loyalty Merchant and/or to Suelon, and shall furthermore immediately return all documents as well as technical equipment that belongs to Suelon. Upon termination of the Merchant Agreement, the Loyalty Merchant shall immediately cease to be authorised to record any further purchases.

9. Password and Merchant Portal

(i) Any personal password issued by Suelon is confidential information.

(ii) If the Loyalty Merchant has reasonable grounds for believing that any unauthorised use of its access to the Suelon Merchant Portal [this needs to be defined] has taken place the Loyalty Merchant agrees to inform Suelonin writing as soon as practicable so that Suelon can take all appropriate steps to block the Loyalty Merchant’s access. In the event of any unauthorised use of the Programme by third parties, the Loyalty Merchant will not be liable for damages arising after it has notified Suelonin writing but this provision will only have application in circumstances wherethe Loyalty Merchant can prove that the unauthorised use was not caused by the negligent or wilful violation by the Loyalty Merchant, its agents or employees.

10. Advertising

(i) Suelon shall be authorised to marketthe Loyalty Merchant in connection with the presentation of the Programme and to conduct other promotional activities. The Loyalty Merchant agrees that it shall grant Suelon a limited license to use the Loyalty Merchant data, trademarks, brand name, and other identification marks solely for promotional purposes in connection with the Programme and shall notify Suelon in writing of any design changes made in this respect.

(ii) The Loyalty Merchant expressly agrees to waive any rights against Suelon for damages caused by incorrect or misleading information posted on the Internet. Suelon disclaims any liability for the correctness or otherwise of the Loyalty Merchant’s data.

11. Confidentiality

(i) It is acknowledged that, during the course of this Agreement, both Suelon and the Loyalty Merchant shall disclose or have access to information, either orally or in writing, that either Suelon or the Loyalty Merchant consider Confidential Information (as hereinafter defined) referred to as “Confidential Information”). All Confidential Information communicated to either Suelon or the Loyalty Merchant (each of whom, as the case may be, referred to herein as the “Recipient”), by either Suelon or Loyalty Merchant (each of whom, as the case may be, referred to herein as the “Discloser”) shall be (i) received in confidence, (ii) treated as confidential, (iii) used only for the purposes of this Agreement, and (iv) protected in the same manner as such party protects its own Confidential Information. Disclosure shall require an employee or agent who receives the Confidential Information to sign a Confidentiality Agreement which shall specifically incorporate by reference the terms of this covenant. Subject to disclosure to employees or agents of any Recipient necessary to effect the purposes of this Agreement, any Recipient shall not disclose any of the Discloser’s Confidential Information to any third party without the prior written consent of the Discloser, except as may be necessary by reason of legal, accounting or regulatory requirements applicable to such party.

(ii) If a Recipient receives a summon or other valid administrative or legal demand requiring it to disclose Confidential Information, then the Recipient shall promptly provide to the Discloser written notice of such demand and, after a reasonable time has expired from providing Discloser notice, if Discloser has not appeared, or objected in such legal proceeding, then Recipient shall be able to disclose the Confidential Information only to the extent required by the Court Order or Administrative Proceeding.

(iii) The confidentiality, property and proprietary rights protections set forth in this Agreement are in addition to, and not exclusive of, any and all other rights to which any of the parties to this Agreement is entitled under law, including, but not limited to, rights provided under copyright laws, trade secrets, laws concerning fiduciary duties and any other relevant proprietary rights and protections. Furthermore, it is acknowledged that the distribution or disclosure of the Confidential Information shall be sufficient to give rise to a claim in damages and other losses. Therefore, the Recipient shall be entitled to seek injunctive relief in order to prevent the continuation of such disclosure and damages. Discloser may apply for such injunctive relief in any court of competent jurisdiction according to such jurisdictions rules and regulations. Nothing contained in this Agreement will limit the Discloser’s right to pursue any other remedies available at law or in equity.

(iv) For purposes of this Agreement, “Confidential Information” means any of the trade secrets or information concerning (i) the organisation, business or finances of the Discloser, or of any third party, including, but not limited to, clients and vendors, which the Discloser is under an obligation to keep confidential; (ii) trade secrets or information regarding existing and future products, designs, methods, formulas, technical specifications, drawings, drafts of publications, research, know-how, techniques, systems, databases, processes, developments, works of authorship; (iii) customer information, including, but not limited to, any compilations of past, existing or prospective customers, members, agreements between customers and the Discloser, or related information about actual or prospective customers; (iv) business plans, marketing plans, sales techniques, projects; (v) the Discloser’s salary or pay rates, other Discloser personnel information, financial performance data, strategic planning; (vi) all other plans or proposals and any other type of information that a reasonable person would deem to be the confidential information of a company operating a similar business to the Discloser’s business; and (vii) any information which the Discloser stamps as being “Confidential.” It is specifically acknowledged that the Discloser does not need to stamp a document as being Confidential for it to be considered Confidential Information.

(v) “Confidential Information” will not include information that (i) is or becomes a matter of public knowledge without violation of any duty of confidentiality of the Recipient; (ii) is rightfully received by the Recipient from a third party without a duty of confidentiality; or (iii) is received from a third party without restrictions against disclosure.

(vi) All of the provisions of this Clause 11 shall survive the Agreement.

12. Amendments or Additions to the Merchant Agreement

(i) The Loyalty Merchant undertakes to immediately inform Suelon in writing of any changes to the Agreement, including but not limited to any changes in ownership, address, bank account information, or company name of the Loyalty Merchant. Furthermore, the Loyalty Merchant agrees to promptly notify Suelon of any financial difficulties of the Loyalty Merchant which might reasonably give rise to the Loyalty Merchant not being in a position to comply with its contractual liabilities to Suelon or any Loyalty Member, especially in case of insolvency or overextension. In case Suelon is not immediately notified of a change of business address, statements that Suelonissues via postal mail to the last known address shall nevertheless be deemed to have been received by the Loyalty Merchant.

(ii) Any amendments to this Merchant Agreement must be made in writing and agreed by the parties. In this context written notice includes statements transmitted by fax or email. This shall also apply to any waiver of the written form.

(iii) Suelon shall inform the Loyalty Merchant in writing by post or by email of any proposed amendments to this Merchant Agreement or to any other terms and conditions issued by Suelon as well as guidelines issued by Suelon regarding the Programme and its operations and accounting porcedures and policies. Such amendments and guidelines shall be deemed accepted unless the Loyalty Merchant objects in writing within one (1) month after notification of same or if the Loyalty Merchant continues to use the Programme after receipt of the written notification.

(iv) All information concerning amendments, guidelines and newsletters will be sent to the email address provided by the Loyalty Merchant.

13. Data Protection

(i) Personal details that a Loyalty Member supplies during the application process (whether related to the Loyalty Member or his/her Authorised Users) will be processed by Suelon with appropriate confidentiality. Suelon may also keep records of any correspondence which with the Loyalty Member. Other than as stated below, no personal details will be divulged to anyone or any organisation outside of Suelon, its data processors or service providers. The Loyalty Member undertakes that, to the extent that he/she supplied or supplies personal details in respect of his/her Authorised Users, he/she has obtained the necessary consents from his/her Authorised Users to permit Suelon to use their personal data for the purposes of the Programme.

(ii) Suelon may use the personal details supplied for the following purposes: (i) to help manage and administer the Programme and improve the way it is run; (ii) to help Suelon understand its Loyalty Members’ shopping habits; and (iii) to provide a Loyalty Member with relevant tailored offers by email, in-App messages, SMS, post or via the Suelon website unless he/she opts out of the receipt of such.

(iii) Suelon may also use (and provide to Loyalty Merchants) information relating to sets or groups of customers, including reports containing transactional data in respect of specific transactions made by Loyalty Members to enhance its understanding of customer behaviour and enable Suelon and the Loyalty Merchants to improve their service to customers.

(iv) A Loyalty Member can ‘opt out’ if he/she does not want to be contacted by Suelon for some or all forms of direct marketing purposes from time to time (including by e-mail and SMS) with information about Suelon products, services and other related Suelon special offers, by ticking the appropriate box on the form to register for the Programme (the “Registration Form”) or by contacting Suelon in writing at the following address 5 Yawl Business Park, Youghal, Co. Cork, Ireland. ].

(v) A Loyalty Member can ‘opt in’ if he/she wishes to be contacted by selected Suelon partners for direct marketing purposes from time to time (including by e-mail and SMS) with information about products, services and special offers provided by that third party, by ticking the appropriate box on the Registration Form.

(vi) The information that Suelon collects from Loyalty Members and Authorised Users may be transferred to and stored at, a destination outside the European Economic Area (“EEA”). It may also be processed by staff or service providers operating outside the EEA who work for Suelon. Such staff or service providers may be engaged in, among other things, the provision of ancillary services such as customer support. By submitting your personal data, you agree to this transfer, storing or processing and you also confirm that any Authorised User for whom you submit data also agrees to this transfer, storing or processing. We will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with this Data Protection notice.

(vii) Each Loyalty Member and Authorised User has the right to request his/her data currently held by Suelon, to rectify or remove personal details, to object to the use of personal details and the right to block any specific uses of personal details, by visiting www.suelon.com. Suelon may charge a fee for this which will not exceed €6.35 or such other amount as shall be permitted by law.

(viii) It is important that Loyalty Member details are kept up to date in order that Suelon can operate the Programme effectively. If a Loyalty Member wishes to clarify Account matters, change or update his/her details on his/her Account, he/she can do so online at www.suelon.com by updating his/her profile or, where available, via the Mobile App.

(ix) If Suelon is sold or transferred to another company, Suelon may transfer all of its rights and obligations under these Terms without any further consent and may disclose or transfer all information it holds about you to a prospective or actual new owner. This disclosure or transfer will not alter a Loyalty Member’s rights in respect of the use that can be made of information by that other company.

(x) By signing the Registration Form or participating in the Programme, the customer/Loyalty Member and Loyalty Merchant agree to abide by the Terms of the Programme and this Data Protection provision.

14. Governing Law

This Merchant Agreement shall be governed by the laws of Ireland. Furthermore, should litigation be commenced which arises out of or concerns this Agreement then the Irish Courts shall have exclusive jurisdiction in respect of any such proceedings.

15. Assignment

The Loyalty Merchant shall not have the right to assign this Merchant Agreement or the rights and obligations of the parties to the Agreement arising from this Merchant Agreement to a third party or to otherwise transfer such agreement or any rights and obligations without first receiving the prior written approval from Suelon. Furthermore, for purposes of this Agreement, a transfer of 50% or more of the shares of the Loyalty Merchant shares carrying voting rights (in the case of a corporate) shall be deemed to be an assignment.Suelon is furthermore expressly authorised to perform or accept individual or all contractual services pursuant to or in connection with this Merchant Agreement through one or more companies.

16. Validity
If any provision of this Merchant Agreement is held wholly or partially invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision shall be replaced with a valid and enforceable provision reflecting the intent and economic impact of the invalid or unenforceable provision.

17. Independent Contractor

The Loyalty Merchant represents and warrants that it is and shall continue to be an independent contractor and that Loyalty Merchant is not serving as an employee of Suelon under this Agreement. Each iof Loyalty Merchant and Suelon intend their rights and duties to be those of independent contractors and nothing contained within this Agreement shall be deemed to create a partnership, joint venture, employment relationship, or authorise either Loyalty Merchant or Suelon to act as an agent or representative of the other party for any purpose. Neither party can bind the other to any agreement with anyone else, nor shall the Loyalty Merchant represent to anyone that he or she is an employee of Suelon. The Loyalty Merchant recognises and acknowledges that it shall be responsible for the payment of all taxes necessitated by the receipt of payment for the tasks and duties provided by the Loyalty Merchant. The Loyalty Merchant agrees to indemnify, hold harmless and defend Suelon from any and all claims, liabilities, damages, taxes, fines or penalties sought or recovered by any governmental entity, including but not limited to the Revenue Commissioners or any other taxing authority, arising out of Loyalty Merchant’s alleged failure to pay any taxes during the term of this Agreement.

18. Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

19. Entire Agreement

No statements, representations, warranties, either written or oral, from whatever source arising, except as expressly stated or incorporated herein, shall have any legal validity between the parties or be binding upon any of them. The parties acknowledge that this Agreement contains the entire understanding and agreement of the parties.

By signing the Merchant Application, you agree to these Terms.

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