Cally Terms and Conditions

The Cally App, Website and product is operated by Feelingpeaky Ltd (“us”, “Cally”, “our”, “we”), a company registered in England and Wales with registered office at 106 The Avenue, Pinner, Middlesex, HA5 5BJ. Cally offers an application which allows vendors to provide loyalty programs and rewards directly to consumers through a smartphone application (“Services”), and provides vendors with programs and applications to track consumers’ use thereof (the “Applications”). These Terms and Conditions (“Terms”) govern your access and use of the Services and the Applications. “Vendor” means any vendor entity and its agents that makes use of the Application or provides Services to its customers. Website shall refer to cally.co.uk.

Please read these Terms carefully.

These Terms govern your use of the Applications and your provision of the Services to your customers. As a Vendor you must accept these Terms prior to signing up your business on Cally, using our website, a third party web site which is affiliated with us, or using Cally application for businesses or providing any Services to its customers. By accepting or in any other way downloading the Applications or making any Services available to your customers, you signify your assent to these Terms. Changes may be made to these Terms from time to time. If you do not accept these Terms, do not use and do not download the Applications or make any Services available to your customers. We will make reasonable commercial efforts to notify you of any updates to these Terms. Notwithstanding the foregoing, your continued use of the Applications or provision of the Services to your customers will be deemed acceptance to amended or updated Terms. As such, you should check frequently to see if we have updated these Terms. The most current version of the Terms is available here. If you do not agree to any of these Terms, please do not use the Applications or make the Services available.

1. Definitions.
In these Terms, the following terms when capitalized have the meanings set forth in this Section.

a.“Customer” means an end user that has been granted a license by Cally to use the Services, and who has accepted the Cally Terms and Conditions.
b.“Cally User Terms and Conditions” means Cally's standard end user license agreement, which may be amended by Cally in its sole discretion, a current version of which is available here.
c.“Promotional Content” means any advertising, promotional or marketing content provided by Vendor for provision to any Customer (including, without limitation, any loyalty programs or rewards) and including any logos, trade names, trademarks or other content of Vendor included in such content.

2. License.
Subject to the terms and conditions hereof, during the period these Terms are in effect Cally hereby grants Vendor a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, license solely to use the Applications and to provide the Services to its Customers.

3. Restrictions.
Vendor shall maintain all copyright and other proprietary notices contained in the Applications and in the Services. Except as set forth expressly herein, Vendor shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Application or the Services; (b) modify the Application or Services, or insert any code or product, or in any other way manipulate the Application or Services; or (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Applications or Services except as expressly permitted by these Terms. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Vendor shall inform Cally in writing in each instance prior to engaging in the activities set forth above. Cally reserves the right to make modifications to the Applications and the Services at any time without prior notice.

4. Promotional Content.
Vendor may provide Promotional Content to Customers through the Services as permitted by Cally. Vendor shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of all Promotional Content. Vendor represents and warrants that no Promotional Content infringes the intellectual property rights or moral rights or any third party. Cally reserves the right, at its sole discretion, to remove any Promotional Content that violates these Terms at any time, without prior notice, or require Vendor to do so. Vendor shall remain solely liable for any loyalty programs or rewards offered to Customers, and shall fully indemnify Cally for its failure to satisfy any of its obligations pursuant to such plans or rewards. Cally does not claim ownership of Promotional Content. However, Vendor grants Cally a non-exclusive, royalty-free, worldwide license of all rights to use, edit, modify, include, incorporate, adapt, record and reproduce Promotional Content for the purposes of these Terms, including the right to exercise this license through independent contractors.

5. Intellectual Property.
a. Cally Property.
Title to and ownership of and all proprietary rights in or related to (a) the Application, Services and related documentation and all enhancements, derivatives, bug fixes or improvements to the foregoing; (b) all trade names, trademarks, and logos of Cally; and (c) all data collected by Cally's server side software with regard to the foregoing (collectively, “Cally Property”) shall at all times remain solely with Cally or its licensors.

b. Vendor Property.
Subject to Section ‎6(a), title to and ownership of and all proprietary rights in or related to Promotional Content and all the trade names, trademarks, and logos of Vendor shall at all times remain with Vendor and its licensors (collectively, “Vendor Property”).

c. No Sale.
Any references in these Terms to sale, resale or purchase of the Cally Property or Vendor Property and related documentation or references of like effect, will be deemed to mean the license thereof pursuant to the terms and conditions of these Terms.

6. Customer Data.
Cally will provide Vendor with certain specified data regarding Customers, including the name of the Customer and certain mutually agreed data regarding the Customer’s activities at Vendor’s business location (“Customer Data”). Vendor agrees that it shall at all times comply with Cally's privacy policy and all applicable law, rules and regulations with respect to all Customer Data and all uses thereof. Vendor shall fully indemnify Cally (and its officers, directors, employees and consultants) for all breaches of its obligations under this provision. Customer Data may include: customer's name, number of visits, visits details, offers usage, Facebook profile link (if provided by the customer).

7. Support.
Customers may contact Cally with regard to the support for the Application using website support or email at info@cally.co.uk or using other forms of communication as described on our website.

8. Confidentiality.
Vendor acknowledges that Cally may disclose to Vendor certain confidential information belonging to and relating to Cally, the Application or the Services. Vendor may disclose to Cally certain information regarding its business and operations. Either party (the “Receiving Party”) receiving information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should clearly be considered confidential proprietary (collectively, “Confidential Information”), agrees to keep such Confidential Information confidential during and after the Term and not disclose or use except in performance of the Receiving Party’s obligations hereunder. Confidential Information shall not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, provided that the Receiving Party provides prompt notice of such requirement. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Vendor will not disclose any information regarding the results of any testing or evaluation of the Application or Services to any third party without Cally's prior written consent.

9. Warranties;Indemnification; Disclaimer.
a. Vendor Warranties.
Vendor represents and warrants that the Promotional Content: (a) does not contain material that is obscene, defamatory, libelous, racially or ethnically insensitive, harassing, threatening or otherwise offensive; (b) does not contain pornography or material that may be harmful to a minor; (c) does not contain material that violates or infringes the intellectual property, moral or contractual rights of any third party; (d) does not contain any virus, worm, Trojan horse, or other harmful or disruptive component; and (e) complies with all applicable law, regulations and rules, including all applicable law regarding advertising, marketing and promotional content and services.

b. Vendor Indemnification.
Vendor shall defend, indemnify and hold harmless Cally from and against any and all suits, proceedings, assertions, damages, costs, liabilities or expenses (including court costs and reasonable solicitors’ legal fees) which Cally may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from or relating to (i) a claim that the Promotional Content infringes or violates any third party intellectual property rights, provided however, that Vendor shall have no obligation to indemnify Cally where such claim of infringement relates solely to the Cally Property incorporated in the foregoing; (ii) use of any Customer Data not in compliance with Cally then-current privacy policy or in violation of applicable law, rule or regulation; or (iii) any other breach of these Terms.

c. Disclaimer.
The application, services and related documentation are provided “as-is”. Cally expressly disclaims any warranties (including with regard to the performance of the application or services and without limitation, express or implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Any reliance on the application or the services is at vendor’s own risk, and cally does not and shall not accept any liability for the application or the services, including without limitation any mistakes or inaccuracies in loyalty programs or rewards created or made available through the application or services.

10. Limitation of liability.
In no event shall Cally , its directors, officers, employees, agents or shareholders, be liable to vendor, any customer or any other third party for any damages, including but not limited to general, incidental, consequential, indirect, direct, special or punitive damages, arising out of or relating to the application or services. In any case, Cally's entire liability under any provision of these terms shall not exceed in the aggregate the amount received from vendor hereunder, with the exception of death or personal injury caused by the gross negligence of Cally to the extent applicable law prohibits the limitation of damages in such cases.

11. Term, Termination and Severability.
The term of this agreement (“Term”) shall commence on the date Vendor accepts these Terms and shall continue for a period of 2 months, and shall thereafter automatically renew for subsequent terms of 1 month, unless otherwise terminated in accordance with these Terms. 

a. Termination.
Either party may terminate this agreement with advance notice of 30 days, provided, however, that Cally may terminate these Terms and all rights granted hereunder without notice if Vendor shall use or market the Application or Services in violation of any applicable law, rule or regulation.

b. Effect of Termination.
Upon expiration or termination of these Terms for any reason, (a) Vendor shall immediately cease the use of the rights licensed hereunder, and shall immediately cease all provision of the Services to its customers; (b) each party shall make payment to the other of all amounts due hereunder as of the date of termination; and (c) Vendor shall cease the use of all Cally Property and shall promptly return to Cally all copies of Cally Confidential Information or destroy same, at Cally's discretion.

c. Survival.
Sections ‎3 (Restrictions), ‎5 (Intellectual Property), ‎6 (Customer Data), ‎8 (Confidentiality), 9 (Warranties; Indemnification; Disclaimer), ‎10 (Limitation of Liability) any accrued and unpaid payments, and this Section ‎11 shall survive the termination or expiration of these Terms for any reason.

12. Vendor agreement
By accepting the terms, you agree to the following: 

a. To run your loyalty program in a fair and non-abusive manner.
b. To keep the provided any device, equipment and software provided by Cally safe and secure. You understand that while Cally grants you access to its platform, the responsibility for managing your loyalty program lies with you.

13. Miscellaneous.
Cally and Vendor are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other. Neither party nor any officer or employee thereof shall, in any event, have any right collectively or individually, to bind the other party, to make any representations or warranties, to accept service of process, to receive notice or to perform any act or thing on behalf of the other party, except as authorized in writing by such other party in its sole discretion. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Cally may assign its rights or obligations pursuant to these Terms. Vendor agrees not to assign any rights under these Terms; any attempted assignment shall be null and void and shall result in the termination of these Terms. If any part of these Terms shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. These Terms shall be governed by the laws of the United Kingdom and the Courts in England and Wales shall have exclusive jurisdiction to hear any disputes arising hereunder.

14. Some of the Services offered on the Website require payment of fees ("Charged Services"). If you elect to sign up for Charged Services, you shall pay all applicable fees, as described on the Website in connection with such Charged Services selected by you. Cally reserves the right to change its prices at any time. You authorize Cally directly or through third parties, to make any inquiries it considers necessary to validate your account and financial information that you provided while signing up for such Services. Please note that according to internal agreements, Cally is entitled to collect fees from Users on behalf of the Charged Services, to process any payments and/or refunds and/or take any billing actions as required in connection with the collection of the fees on behalf of the Charged Services. All fees are exclusive of all taxes or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes or duties. You agree to pay any such taxes that might be applicable to your use of the Services and payments made by you to Cally. All fees related to using Charged Services are charged automatically using the payment method as determined in the Website. If Cally does not receive a request by the user, through email or phone for Charged Services termination you acknowledge and understand that Cally will continue to charge you for the Charged Services as long as your account remains active regardless if the Charged Services are used or not. If, at any time, you contact your bank or credit card company and decline or otherwise reject the charge of any payable fees, this act will be considered a breach of your obligation hereunder and your use of the Charged Services will be automatically terminated. Your use of the Charged Services will not resume until you re-subscribe for any such Charged Services. Users purchasing Charged Services shall pay any and all prices and fees due for such Services. All prices and fees are non-refundable unless otherwise expressly noted, even if such Charged Services are suspended, terminated, or transferred prior to the end of the Services term. Cally expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at the Website and effective immediately without need for further notice to any user. Any changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below. In order to ensure that you do not experience an interruption or loss of services, most services offer an automatic renewal option. The automatic renewal option automatically renews the applicable service for a renewal period equal in time to the original service period. Unless you cancel your subscription Cally will automatically renew the applicable service when it comes up for renewal, and will take payment from the payment method you have on file with Cally then current rates, which you acknowledge and agree may be higher or lower than the rates for the original service period. You may cancel your subscription from such services prior to the automatic renewal at any time. In such event the services shall be discontinued upon the expiration of the respective period you have paid for and you shall not have any claims towards Cally in relation to the discontinuation of the services.

LAST UPDATED: 25/06/2014