Merchant Agreement
Region: Australia & Asia-Pacific · United Kingdom
Merchant Agreement (APAC)
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, the following definitions apply:
“Affiliate” with respect to a party, means any entity that directly or indirectly controls, or is controlled by, or is under common control with such party.
“Control” means: (i) that entity directly or indirectly owns more than 50% of the relevant party; or (ii) that entity has the ability to direct the affairs of the relevant party through any lawful means (e.g. a contract that allows control); or (iii) that entity has a franchisee or franchisor relationship with the relevant party, or a relationship that is materially similar.
“Alternative Payment Frameworks" means the non-card-based payment networks such as direct debit and other alternative forms of payment.
“Account” means an instance of the Platform that is set up and used to manage the services for a specific business or location. If specified on the Term Sheet, Customer using the Platform may have multiple accounts if they have more than one branch or location.
“Business Day” means a day other than a Saturday, Sunday or public holiday in the Territory.
"Card Schemes" means the card-based payment networks including (but not limited to) Visa, MasterCard, American Express.
“Claim” means any allegation, debt, cause of action, claim, liability, suit, action, demand or proceeding of any nature whatsoever, arising whether present or future, fixed or unascertained, actual or contingent arising in contract (including under an indemnity), tort (including negligence), common law, equitable or statutory or otherwise.
“Confidential Information” means proprietary and confidential information received by LOKE or the Customer in connection with this Agreement and their relationship and is conspicuously marked as confidential, proprietary or the like or, in the case of confidential information disclosed orally, clearly identified as confidential, proprietary or the like at the time of oral disclosure and confirmed as confidential, proprietary or the like in writing within 14 days by the disclosing party. Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party, as well as, in the case of LOKE, any information posted on a LOKE Website (to the extent such information is not publicly accessible).
“Content” means all visual, written or audible communications, files, data documents, videos, or content created through Customer’s use of the Services or otherwise provided on a Platform.
“Currency” means the currency set out on the Term Sheet.
“Customer Data” includes any software products, including any information, data (including data on its End Users or payment data), logos, designs, copy and related materials of Customer or its Affiliates in any format whatever generated, whether processed and/or produced by or on behalf of LOKE.
“Customer Work” means all work which the Customer, its Affiliates, Representatives or third-party suppliers are reasonably required to do, in order to ensure LOKE can complete and deliver the Services and the Functionality (as listed in Annexure 1) in a timely and workmanlike fashion.
“Customisations” means any new developments or functionality for or relating to the Platform, or delivered as part of the Services, for Customer as described in, and subject to any special terms set out in this Agreement or any Order Form.
“Data Collection Tools” means hardware and/or Software tools that support LOKE's ability to provide troubleshooting on cases, data analysis, and report generation capabilities as part of the Services.
“Data Protection Legislation” means the Privacy Act 1988 (Cth) (including the Australian Privacy Principles and the Notifiable Data Breaches scheme), the Spam Act 2003 (Cth) and all other laws relating to the processing of personal information and privacy that apply to a party from time to time, including the laws of any other country in the Territory in which the Services are provided, in each case as amended or replaced.
“Digital Term Sheet” means an on-line form or email setting out the key commercial terms of the agreement between the parties.
“Emergency” means an event or possible event which requires or would require LOKE to undertake critical development amendments, which require immediate attention, to avoid significant impact on Customer’s operations, or a situation that, unless immediately remedied, jeopardises or has the potential to jeopardise safety or to cause immediate risk to property.
"End User" means users of the Platform who make purchases, registrations or loyalty redemptions in respect of Customer.
“End User Fees” means fees charged to End Users of the Platform for use of the Platform.
"Facilitated Payment Processing" or "FPP" means the collection of all sales proceeds from the purchase of food, beverage, other concessions and associated items displayed in the LOKE application controlled by the customer solicited via the Platform using third-party services (such as Stripe).
"Fees" means the Platform Setup Fee, the Platform Use Fee and the Transition Services Fee, Transaction Fees, End User Fees, as set out on the Term Sheet or amended in accordance with this agreement from time to time.
“Force Majeure Event” means an event beyond the affected party’s reasonable control, including (without limitation) accidents, severe weather events, acts of God, actions of any Government agency, epidemic, pandemic, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
“Franchisee” means any franchisee, licensee or other operator of a store or venue that trades under Customer’s brand (or the brand of a Customer Affiliate) and uses the Platform, including any Affiliate of Customer that is a franchisee.
“Full Commercial Commencement Date” has the meaning given in Section 16.13.
“Functionality” means:
a. the functionality of the Platform set out in Annexure 1; and
b. any features, enhancements, product development or innovations introduced by LOKE which may, at LOKE’s discretion, be made available to the Customer.
“Go-Live Date” means, in respect of an Account, the date on which the Platform is first made available to that Account for live use with End Users.
“Good Industry Practice” means the exercise of the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected and used by a skilled and experienced contractor in a well-managed operation engaged in activities of similar scope and complexity to the Services under the same or similar circumstances and where such contractor is seeking to comply with its contractual obligations and all law.
“Hardware” has the meaning given in Section 22.1.
“Incumbent Provider” has the meaning given in Section 5.9.1.
“Initial Platform Training Fee” means the fees set out on the Term Sheet.
“Initial Service Term” means the period set out on the Term Sheet, commencing on the date the solution is at least 50% deployed by the Customer.
“Intellectual Property” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighbouring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
“Invoiced Party” means the entity which LOKE shall invoice for the Service as is set out in the Term Sheet.
"Malicious Code" means viruses, worms, logic bombs, trojan horses and other harmful or malicious code, files, scripts, agents or other computer programming codes which will impair use and development of the Service.
“Minimum Term” has the meaning given in Section 16.13.
"Order Form" means any ordering form agreed between the parties for purchase of additional services subject to the terms of this Agreement. Order Forms form part of this Agreement once signed by authorised officers of both parties.
“Outage” is a period of time that the supply of the Services to Customer is interrupted other than an interruption that is less than 3 seconds in duration.
"Payment Scheme Rules" means the applicable bylaws, rules and regulations published by the Card Schemes and any Alternative Payment Framework from time to time.
“Payment / Invoice Terms” means the payment and invoicing terms as set out onthe Term Sheet.
“Platform” means the features and services that LOKE and/or its Affiliates offer or may offer and make available from time to time through: (i) the LOKE Websites; (ii) the LOKE Mobile Applications; or (iii) any or all other of LOKE or it’s Affiliates hardware, software, websites, webpages, services, application programming interface, services or products of any type which developed or marketed in whole or in part by LOKE or its Affiliates, and which enables the Functionality and enables the End Users to: purchase of food, beverage, other concessions and associated items displayed in the LOKE application controlled by the customer.
“Platform Setup Fee” means the fees payable for the Platform Setup Services as set out on the Term Sheet .
“Platform Setup Services” means the any work required to be undertaken by LOKE to enable the Platform, including any upgrades, configurations, modifications or customisations, as set out in Annexure 2, including any Customisations required as part of these services.
"Platform Use Fee" means the fee payable by Customer in respect of use of the Platform as outlined on the Term Sheet.
“Representatives” means any employees, officers, contractors, representatives or agents of a party.
"LOKE Mobile Applications" means LOKE’s branded or co-branded applications designed for, and usable on, mobile phones, smart phones, tablet devices or widgets.
"LOKE Payment Processing" means the collection of all sales proceeds from the purchase of food, beverage, other concessions and associated items displayed in the LOKE application controlled by the customer, solicited via the Services by LOKE as the limited payment collection agent;
“LOKE Privacy Policy” means LOKE’s privacy and cookie policy applicable to the Territory, available on LOKE’s website at www.loke.global, as updated from time to time.
"LOKE Websites" means LOKE’s branded or co-branded websites and domains (including www.loke.com.au, www.loke.global, manage.mytidyapp.com and all of the webpages, subdomains, international version, country level domain variants applications, subparts of those websites, and all of the services available on or through those websites and successors thereof.
“Scheduled Maintenance” means a period of time, when LOKE may interrupt the Services for routine maintenance, upgrading or similar processes.
“Security Breach” means (i) any act or omission that compromises or is likely to compromise the security, confidentiality and/or integrity of any of the Customer Data or the physical, technical, administrative or organisational safeguards put in place by LOKE that relate to the protection of the security, confidentiality or integrity of Customer Data; and/or (ii) receipt of any complaint in relation to the privacy practices of LOKE (or any of its personnel) or a breach or alleged breach of this Agreement relating to such privacy practices.
“Security Protocols” means the security protocols set out in Annexure 5.
"Service Levels" means the service levels set out in Annexure 4.
“Subscription Start Date” means the date set out on the Term Sheet.
"Service Term" means the Initial Service Term and any Renewal Service Term.
"Services" means the Platform Setup Services, the Platform, the Support Services and the Transition Services.
“Software” means the software programs provided by LOKE, including any copies, Customisations, updates, upgrades, modifications, enhancements, and any derivative works thereof.
"Support Services" means the training and support services for the Platform as set out in Annexure 3 and Annexure 4.
“Target Go-Live Date” means the target date for the Go-Live Date of all Accounts set out in the Term Sheet or, if none is set out, the date which is six (6) months after the Subscription Start Date, extended day for day for any delay caused solely by LOKE.
“Term” has the meaning given to it in Section 16.1.
“Term Sheet” means the term sheet, identified as such, which the Customer has signed up to, incorporating the Agreement which may include a Digital Term Sheet.
“Territory” means the territory set out on the Term Sheet, or if in the context of an Affiliate, the location of the Affiliate.
"Third-Party Products" means products and services that are provided by third parties selected by Customer or interoperate with the Platform or can be purchased or ordered through the Service, and that may be identified as third-party products by Customer notifying LOKE in writing.
"Transaction Fees" means the transaction fees specified on the Term Sheet and any network costs, interchange fees, scheme fees, payment processing fees, End User Fees and other related transaction fees whether charged on a percentage or per-transaction basis;
"Transition Period" means the period following the termination of this Agreement where LOKE will provide reasonable assistance, training and knowledge to permit the termination of the Service and the transition by Customer to a replacement service in exchange for payment of the Transition Services Fee, as set out in an Order Form.
"Transition Services" means the provision of services by LOKE to enable Customer to assume responsibility of the Services or termination of this Agreement in exchange for payment of the Transition Services Fee and will include:
a) LOKE making available Customer Data; and
b) LOKE providing reasonable assistance, training and knowledge to permit the termination of the Services and the transition by Customer to a replacement service
as set out in an Order Form.
“Transition Services Fees” means the fees for the Transition Services, charged at the standard hourly rate of LOKE, at set out at its then current standard rate card, as at the date this Agreement is terminated.
1.2. In this Agreement, unless the contrary intention appears otherwise:
a) monetary amounts are expressed in the Currency;
b) headings are for convenience only and do not affect interpretation;
c) words importing the singular include the plural and vice versa;
d) other grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
e) an expression importing a natural person includes a partnership, joint venture, association, corporation, trading trust or other body corporate or Government agency;
f) a reference to any thing includes a part of that thing;
g) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and bylaws issued under that statute;
h) a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
i) a reference to a party to a document, including this Agreement, includes that party’s successors and permitted assigns (immediate or otherwise) of that party;
j) a reference to a Section, annexure, appendix or schedule is a reference to a Section in or annexure, appendix or schedule to this Agreement;
k) where the day on or by which anything is to be done is not a Business Day, that thing must be done on or by the next Business Day; and
l) the words “include”, “including”, “for example” or “such as”, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.
2. EXCLUSIVITY
2.1. Customer agrees that during the Term it will not, and will not engage any person to, attempt to build, or to use, operate or provide any product, services or software that is the same, or similar to the Services, or which directly or indirectly competes with the Services, except for when it is a permitted use case.
2.2. A permitted use case under Section 2.1 is:
2.2.1. The continued use of similar pre-existing services (the details of which have been disclosed by the Customer to LOKE) or software by the Customer
2.2.2. A use case that is approved by LOKE in writing, at its sole discretion.
2.2.3. The use of a competing product or service in a single store, for no more than ninety (90) days and with prior written notice to LOKE, solely for the purpose of testing a new product or service, provided that it is not rolled out to any other store during the Term.
2.3. Customer also agrees that it will not expand or extend the use of pre-existing services or software during the Term.
2.4. Notwithstanding Sections 2.1 to 2.3, after a valid notice of termination or non-renewal has been given in accordance with this Agreement, Customer may, during the final six (6) months of the then-current Service Term, engage a provider of competing services solely for planning, testing, integration and preparation for transition after the end of the Service Term, provided that:
2.4.1. Customer continues to process all live transaction volume through the Services until the effective date of termination;
2.4.2. Customer does not migrate, divert, dual route or otherwise shift any transaction volume, payments, ordering or loyalty activity away from the Services before the effective date of termination;
2.4.3. Customer continues to pay all Fees and minimum commitments in full until the effective date of termination;
2.4.4. the competing services are not used in production or made available to End Users before the effective date of termination; and
2.4.5. Customer complies with its confidentiality, data protection and intellectual property obligations under this Agreement.
2.5. If Customer (or any supplier directed by Customer) builds or procures a product or service that competes with the Services, Customer must not, and must ensure that any such supplier does not, use any of LOKE’s Pre-Existing Technology, Confidential Information or Intellectual Property in its design or development.
2.6. These Terms and Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SCOPE AND PROVISION OF PLATFORM
3.1. This Agreement describes the terms and conditions for Customer’s purchase of the Services. The applicable appendices and Order Forms exclusively define the scope of the Services that LOKE shall provide to Customer. To the extent there is a conflict between the terms of an annexure and these Terms and Conditions, these terms of the Terms and Conditions prevail, unless explicitly stated otherwise in the Annexure or an Order Form.
3.2. LOKE agrees to:
3.2.1. subject to receipt by LOKE of the Platform Setup Fee (if any), provide the Platform Setup Services to Customer;
3.2.2. enable the Platform to facilitate payments through: (i) Facilitated Payment Processing; or (ii) such other payment processing option as may be set out in on the Term Sheet;
3.2.3. provide the Platform to Customer, in accordance with this Agreement and the Service Levels, for the duration of the Service Term;
3.2.4. comply with the Security Protocols;
3.2.5. provide the Support Services to Customer, for the duration of the Service Term;
3.2.6. provide the Customisations (if any) in accordance with the terms of this Agreement;
3.2.7. subject to any provision in this Agreement, during the Services Term, use commercially reasonable efforts to make the Platform available;
3.2.8. use reasonable commercial effort to ensure that the Platform is free of Malicious Code; and
3.2.9. subject to receipt by LOKE of the Transition Services Fee, provide the Transition Services (if any) to Customer.
3.3. Notwithstanding the foregoing and subject to any law, Customer acknowledges and agrees that:
3.3.1. the Services may not be uninterrupted or free from error or fault;
3.3.2. LOKE is not responsible for any delays, delivery failures, errors, omissions, or any other loss resulting from the transfer of data over third-party communications networks and facilities, including the internet, and Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such third-party communications facilities;
3.3.3. use of the Platform by Customer or any material (including any financial or transaction reports) provided by LOKE will be uninterrupted or error free;
3.3.4. the Services do not constitute the receipt of accounting advice and Customer remains solely responsible for complying with all applicable accounting, tax and other laws relating to Customer’s business;
3.3.5. it is solely responsible to check that storage of and access to Customer Data via the Platform will comply with laws applicable to it (including any laws requiring Customer to retain records);
3.3.6. it is solely responsible to determine that the Services are ‘fit for purpose’;
4. SERVICE LEVELS
4.1. LOKE will endeavour to supply the Services in accordance with or in excess of the Service Levels (if any), but a breach of a Service Level, is not a breach of the Agreement. The sole and exclusive remedies for breach of the Service Levels is set out in Annexure4.
4.2. The Service Levels will not apply to Outages that result from:
4.2.1. acts or omissions by third-party communications networks and facilities, including the internet.
4.2.2. unscheduled maintenance;
4.2.3. Scheduled Maintenance;
4.2.4. an Emergency;
4.2.5. a Force Majeure Event;
4.2.6. a failure or malfunction of Customer’s equipment, software or power supply, unless caused by LOKE;
4.2.7. an act or an omission of Customer or a person under Customer’s direction or control;
4.2.8. a requirement imposed on LOKE by: (i) a Government, statutory or other relevant authority with jurisdiction over the Services; or (ii) by or under any law; or
4.2.9. unauthorised or illegal access by any party to any part of the system providing the Services, including hacking, cracking, virus dissemination and denial of service attacks.
5. CUSTOMER'S OBLIGATIONS
5.1. Customer agrees to
5.1.1. provide to LOKE, promptly, all instructions, assistance and access to information and people relevant to and necessary for LOKE to perform and deliver the Services; and
5.1.2. ensure that it, and any of the Customer’s relevant third-party suppliers, will complete all Customer Work necessary for the completion and delivery of the Services, in a timely and workmanlike fashion.
5.2. Customer agrees that, as a fundamental term of this Agreement on which LOKE relies, any use of Customer Data by LOKE, its Affiliates or each of their Representatives, has been collected by Customer in accordance with the Data Protection Legislation, including by giving End Users a collection notice that complies with Australian Privacy Principle 5 and identifies LOKE as a recipient, and will not infringe any right of privacy or other legal right of any party or breach any law. Customer indemnifies LOKE, its Affiliates or each of their Representatives, and agrees to keep them indemnified against loss or damage that LOKE, its Affiliates or each of the Representatives suffers or incurs arising out of Customer Data infringing or breaching any law or otherwise in breach of this Section 5.2.
5.3. Customer agrees to be bound by the LOKE Terms of Use applicable to the Territory, available on LOKE’s website at www.loke.global, which are incorporated herein by reference, as it is applicable to the Services.
5.4. Customer agrees that it will not, and it will ensure that its Representatives do not:
5.4.1. use the Platform to store or transmit Malicious Code;
5.4.2. interfere with or disrupt the integrity or performance of the Platform or LOKE’s information technology systems; or
5.4.3. attempt to gain unauthorised access to the Platform or their related systems or networks.
5.5. Customer agrees to have in place reasonable safeguards, precautions and security procedures to:
5.5.1. protect the Platform from access or use by an unauthorised access and use; and
5.5.2. protect LOKE’s information technology systems, including implementing reasonable procedures to guard against Malicious Code, unauthorised interception, access, use or loss.
5.6. Customer shall notify LOKE promptly of any matters in Section 5.4 and 5.5 of which it becomes aware.
5.7. Where Customer chooses, with LOKE’s prior written approval, to use a third-party to enable the Facilitated Payment Processing:
5.7.1. and that third-party is not a pre-approved LOKE payment partner or supplier, the Customer will pay for any and all development costs to integrate that Facilitated Payment Processing with the Platform, to be agreed between the parties promptly after Customer has selected such third-party.
5.7.2. Customer is responsible for ensuring that the third-party and its service satisfies the applicable Payment Scheme Rules; and
5.7.3. Customer must collect all of its proceeds through the applicable third-party service and LOKE accepts no obligation or liability with respect to such collection or the performance or non-performance of that third-party. Any failure, outage or deficiency attributable to that third-party is not a breach of this Agreement by LOKE.
5.8. Customer agrees that it will include the words “Powered by LOKE” on its customer facing sites and user interfaces, or similar wording, in a form, manner, size and placement agreed to by LOKE (acting reasonably).
5.9. Rollout. Customer must, and must procure that each of its Affiliates (including each Franchisee) will:
5.9.1. within two (2) months after the Subscription Start Date (or such other period as is set out in the Term Sheet), give notice of termination to each provider of products or services that will be replaced, in whole or in part, by the Services (each an “Incumbent Provider”), taking effect no later than the earliest date on which the relevant contract can be terminated without breach;
5.9.2. within two (2) months after the Subscription Start Date, notify each Affiliate and Franchisee of the adoption of the Platform and the termination of the Incumbent Providers;
5.9.3. give LOKE timely access to, and the contact details of, each Affiliate and Franchisee for the purposes of communicating and implementing the rollout of the Platform and Services;
5.9.4. mandate the exclusive use of the Platform and Services by each Affiliate and Franchisee for the Service Term;
5.9.5. cease, and procure that each Affiliate and Franchisee ceases, using the services of each Incumbent Provider within thirty (30) days after the later of (a) the Go-Live Date of the relevant Account and (b) the earliest date on which the relevant contract with the Incumbent Provider can be terminated without breach, and not renew, extend or amend any contract with an Incumbent Provider, or enter into any replacement contract, for products or services provided by the Platform;
5.9.6. update its operations manual, brand standards, approved supplier lists, procedures and systems to reflect the adoption of the Platform and Services as the exclusive solution for the functions they provide;
5.9.7. not do, or omit to do, anything that would discourage, delay or hinder the adoption or use of the Platform and Services, including recommending, approving or endorsing any competing product or service to any Affiliate or Franchisee; and
5.9.8. otherwise support LOKE in the timely and efficient deployment of the Platform and Services to all Accounts.
5.10. Customer represents and warrants that: (a) it has the power to mandate the adoption and exclusive use of the Platform and Services by its Affiliates and Franchisees and to perform its obligations under Section 5.9; (b) it has the power to terminate its contracts with the Incumbent Providers in accordance with Section 5.9.1; and (c) it has disclosed to LOKE in writing, before the date of this Agreement, all contracts with Incumbent Providers, including their expiry dates and any early termination fees.
5.11. Payment processing. Where the Services include LOKE Payment Processing or payment processing provided through LOKE’s payment partner (currently Stripe), Customer must: (a) accept and comply with the Stripe Connected Account Agreement (which incorporates the Stripe Services Agreement) and any other terms required by LOKE’s payment partner, as updated from time to time; (b) promptly provide all information and documents that LOKE or its payment partner reasonably requires to verify Customer’s identity and business and to comply with anti-money laundering, counter-terrorism financing, sanctions and Payment Scheme Rules requirements; and (c) keep its payment account in good standing. Customer authorises LOKE to share information about Customer and its transactions with LOKE’s payment partner for these purposes. Customer acknowledges that LOKE’s payment partner may suspend, restrict or close Customer’s payment account in accordance with its terms, and that this is not a breach of this Agreement by LOKE.
5.12. Age-restricted products. Where Customer, or any of its Affiliates or Franchisees, offers alcohol, tobacco or any other age-restricted product through the Platform, Customer must, and must procure that each of its Affiliates and Franchisees will: (a) hold and maintain all licences, permits and approvals required to sell and supply those products, including for online ordering, collection and delivery; (b) check the age of the person receiving those products at the time of collection or delivery, including where delivery is made by a third-party courier, in accordance with applicable law and the conditions of its licences, and refuse to supply them where required; and (c) comply with all other laws that apply to the sale, supply and delivery of those products. Customer acknowledges that LOKE does not verify the age of End Users and is not responsible for the sale or supply of age-restricted products.
6. OWNERSHIP
6.1. Each party will retain the exclusive ownership of all its pre-existing Intellectual Property, Confidential Information and materials (including, without limitation, proprietary ideas, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology) which are:
6.1.1. owned by a party prior to commencement of any Services under this Agreement; or
6.1.2. otherwise developed by that party or that party’s third-party supplier, outside the scope of this Agreement.
(the “Pre-Existing Technology”).
6.2. Except as otherwise expressly stated in this Agreement, LOKE and/or LOKE’s licensors owns and will continue to own all right, title and interest in and to its Pre-Existing Technology as well as the Services, which for the avoidance of doubt includes the Platform, any Software (including Data Collection Tools, recommendations, reports, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology provided or developed by LOKE (or a third-party acting on LOKE’s behalf), whether available through an online service or others, including (but not limited to) any upgrades, configurations, modifications, customisations (including the Customisations), programming, documentation, specifications, or any content contained in the software products or reports available from the use of the software products and all Intellectual Property in any of the foregoing (“LOKE Intellectual Property”).
6.3. As between Customer and LOKE, Customer shall at all times retain all right, title and interest in and to all of Customer’s Pre-Existing Technology and all Intellectual Property that is developed by Customer or by a third-party on Customer’s behalf thereafter (other than LOKE Intellectual Property), and in any Customisations to the extent that they consist solely of Customer-specific branding, artwork, designs and text that do not incorporate, derive from or relate to the Platform or LOKE’s Pre-Existing Technology. LOKE owns all right, title and interest in and to all other Customisations developed by or on behalf of LOKE, including any that relate to, are integrated with or form part of the Platform, and grants Customer a non-exclusive, royalty-free licence to use those Customisations as implemented for Customer in connection with the Services for the Service Term.
6.4. All Intellectual Property in relation to Third-party Products shall at all times be owned by the applicable third-party and will be subject to any applicable third-party license terms.
]7. LICENSES
7.1. Subject to the terms of this Agreement and except to the extent expressly specified in this Agreement or any Order Form, LOKE grants to Customer and its Affiliates, for the duration of the Service Term, the non-exclusive right, not transferable (except to an End User), non-sub-licensable right to use the Platform and the Services in the Territory, solely for the Customer’s internal business, and to enable the Platform and Services to be used by its Affiliates and their End Users.
7.2. For the avoidance of doubt, Customer cannot promote or make the Platform available to anyone other than Customer, those Customer Affiliates listed in Annexure 7, or their End Users.
7.3. Unless permitted under this Agreement or any Order Form, Customer shall not, and must procure that its Affiliates and Representatives do not, and do not attempt to, do any of the following in relation to the Platform of any material contained on the Platform;
7.3.1. copy, modify, alert, duplicate, create derivative works from, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform, or any material contained on the Platform in any form or media or by any means;
7.3.2. reverse compile, decompile, disassemble, translate, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform or any materials contained on the Platform;
7.3.3. reproduce, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Platform or any materials contained on the Platform;
7.3.4. distribute, disclose or allow use of the Platform or any materials contained on the Platform, in any format or by any other means;
7.3.5. scrape, store, publish, transmit, transfer, communicate, distribute or disseminate, the Platform or any materials contained on the Platform
7.3.6. combine the whole or any part of the data available on any the Platform with any other software, data or material or store or use any part of that data in an archival database or other searchable database except as forming part of any deliverable;
7.3.7. access all or any part of the Platform in order to build a product or service which competes with the Platform or any part of LOKE’s business;
7.3.8. allow the unauthorised use, copying, publication or dissemination of the Platform by any third-party;
7.3.9. use the Platform to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; or
7.3.10. post any Customer Data or use the Platform, to process any of the below transactions. Customer represents and warrants that it will not submit the following transactions for processing through the Platform, being any transaction that:
(a) would violate any law, including and privacy or data security law or the Payment Scheme Rules;
(b) is fraudulent or criminal in nature; or
(c) would constitute sending money to another party other than for the purchase of the purchase of food, beverage, other concessions and associated items displayed in the LOKE application controlled by the customer.
7.4. The Customer acknowledges and agrees that Third-Party Products may be available through the Service. Any use by Customer or End Users of Third-Party Products, is solely a matter between Customer and the applicable supplier of the Third-Party Product. LOKE does not warrant or support Third-Party Products, whether or not they are designated by LOKE as “certified” or otherwise, except as specified in this Agreement or an Order Form.
7.5. LOKE and Customer will work together in good faith to negotiate terms for the integration of a Third-Party Product into the Platform if requested by Customer (E.g. API with alternate Payment Gateways). Terms for integration work will be in addition to the Platform and are subject to agreement between LOKE and Customer, via an Order Form.
7.6. LOKE may allow a third-party, to access Customer Data to facilitate the Service and as reasonably required for the enhancement and optimisation of the Service.
8. WARRANTIES
8.1. LOKE warrants to customers that all Services provided under this Agreement shall be performed in a workmanlike manner and (where applicable) will materially comply with the relevant service set out in the Appendices.
8.2. Customer’s sole and exclusive remedy for breach of warranty shall be, at LOKE’s sole discretion:
8.2.1. re-performance of the services; or
8.2.2. termination of this agreement or the applicable service and reimbursement by LOKE to the Customer of the portion of the fees paid to LOKE by the Customer for such non-conforming Services.
8.3. Customer acknowledges and agrees that LOKE uses third-party services from time to time and any bugs or errors that are as a result of the third-party service may not be able to be resolved by LOKE. In this case, LOKE will provide all reasonable assistance to Customer to resolve any bugs or errors with that third-party service or assist Customer in locating and installing a similar third-party service.
8.4. In order to receive the remedy in Section 8.2, Customer must promptly notify LOKE of a breach of this warranty and, if capable of remedy, allow a reasonable period to remedy such breach.
8.5. Except as expressly set out in this Agreement, all conditions, warranties and representations, express or implied by (i) statute, (ii) common law or (iii) otherwise in relation to the Services are excluded to the fullest extent permitted by law.
9. PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT INDEMNIFICATION
9.1. LOKE will defend any claim against Customer that a Service infringes third-party patents or copyrights (the “IP Claim”) and will indemnify Customer against the final judgment entered by a court of competent jurisdiction or any settlements arising out of an IP Claim.
9.2. Customer shall:
9.2.1. promptly notify LOKE in writing of the IP Claim (or threat thereof), and any subsequent litigation updates; and
9.2.2. cooperate with LOKE in the defence of the IP Claim (including any statements to third parties regarding the IP Claim), and grant LOKE full and exclusive control of the defence and settlement of the IP Claim and any subsequent appeal.
9.3. If Customer fails to notify LOKE promptly of the IP Claim, and that failure prejudices LOKE’s ability to defend, settle or respond to the IP Claim, then LOKE’s obligation to defend or indemnify Customer with respect to that IP Claim will be reduced to the extent LOKE has been prejudiced. In addition, such failure to provide prompt notification shall relieve LOKE of any obligation to reimburse for Customer attorneys’ fees incurred prior to notification.
9.4. If an IP Claim is made or appears likely, Customer agrees to permit LOKE to procure for Customer the right to continue using the Service, or to replace or modify the Service with one that is at least functionally equivalent. If LOKE determines that none of those alternatives is reasonably available, then LOKE will refund to Customer a pro-rata portion of the price originally paid by Customer to LOKE for such Service for the remainder of the unexpired Service Term.
9.5. LOKE has no obligation for any IP Claim based on:
9.5.1. compliance with any designs, specifications, requirements or instructions provided by Customer or a third-party on Customer’s behalf;
9.5.2. modification of a Service by Customer or a third-party;
9.5.3. the amount of money made or duration of use of the Service, revenue earned through use of the Service, or services offered through use of the Service; or
9.5.4. combination, operation or use of a Service with non-LOKE products, software, services or business processes.
9.6. This Section states LOKE’s entire obligation and Customer’s exclusive remedy regarding any claims for intellectual property infringement.
10. INDEMNITIES BY CUSTOMER
10.1. Customer (indemnifying person) agrees to indemnify LOKE, its Affiliates and each of their Representatives (each and all indemnified persons) from, and to hold each indemnified person harmless against, any Claim reasonably and properly suffered or incurred by any of the indemnified persons, including penalties or fines imposed by any regulatory authority and any damages and costs paid or payable (including solicitor client legal costs) as a result of: (1) as a result of Customer or any person for whom Customer is responsible breaching any of the obligations under Section 5 (CUSTOMER'S OBLIGATIONS), Section 6(OWNERSHIP), Section 7 (LICENSES), Section 12 (CONFIDENTIALITY) and Section 13(CONTENT, PRIVACY AND DATA PROTECTION); (2) as a result of Customer or any person for whom Customer is responsible committing a negligent, fraudulent or wrongful act or omission; (3) any allegation that Customer Data, Content, menus, pricing, promotions, loyalty programmes, branding or other materials, or any specifications, configurations or Customisations provided or required by Customer, infringe or misappropriate the rights of any third-party; (4) any breach by Customer, its Affiliates or Franchisees of any applicable law, regulation or Payment Scheme Rules in connection with their operation, marketing, deployment or use of the Services, including PCI-DSS requirements, Data Protection Legislation and consumer protection laws; or (5) any fraud, chargebacks, unauthorised transactions or excessive transaction disputes originating from or facilitated by the locations, systems or operations of Customer, its Affiliates or Franchisees, except to the extent that that the loss, damage, liability, claim, cost or expense is caused by LOKE’s breach, negligence or wrongful act.
11. LIMITATION AND EXCLUSION OF LIABILITY
11.1. Notwithstanding Section 10 of this Agreement, nothing in this Agreement limits or excludes the liability of:
11.1.1. either party to the other for:
(a) bodily injury or death resulting directly from the negligence of the other party;
(b) fraud or fraudulent misrepresentation;
(c) a breach of Section 12 (CONFIDENTIALITY);
(d) a breach of Section 13 (CONTENT, PRIVACY AND DATA PROTECTION); or
(e) any liability that cannot be limited or excluded under applicable law.
11.1.2. Customer to LOKE arising out of:
(a) Customer’s breach of Section 7 (LICENSES);
(b) failure to pay any amounts due to LOKE under this Agreement;
(c) any liability of Customer under Section 5.2; or
(d) any liability of Customer under Section 10 (INDEMNITIES BY CUSTOMER), Section 14.4 or Section 22 (HARDWARE).
11.2. Subject to Section 11.1 above and Section 11.3 below:
11.2.1. LOKE’s total aggregate liability is limited to the greater of: (a) one hundred thousand dollars (A$ 100,000); and (b) the money paid to LOKE under this Agreement during the twelve (12) month period prior to the event or circumstances that first gave rise to such liability; and
11.2.2. Customer’s total aggregate liability is limited to the total of all amounts paid and payable by Customer under this Agreement over the Service Term (including the Minimum Term).
11.3. Subject to Section 11.1 above, and notwithstanding anything else in this Agreement to the contrary, neither party will be liable for any:
11.3.1. special, incidental, indirect or consequential damages;
11.3.2. loss of any of the following: profits, revenue, business, anticipated savings, use of any product or service, opportunity, goodwill or reputation;
11.3.3. lost or damaged data; or
11.3.4. wasted expenditure (other than any expenditure necessarily incurred to discharge the innocent party’s duty or to mitigate its losses); or
11.3.5. loss of or damage to goodwill.
11.4. This limitation of liability applies whether the claims are contract, tort (including negligence), misrepresentation or otherwise. This limitation of liability is in the aggregate and not per incident. Where Customer has entered into this Agreement for itself and on behalf of its Affiliates or Franchisees, Customer is jointly and severally liable with each of them for their obligations under this Agreement.
11.5. Except for claims in respect of Customer’s breach of LOKE’s intellectual or proprietary rights, Customer’s obligation to pay Fees and other amounts under this Agreement, and Customer’s liability under Section 10 (INDEMNITIES BY CUSTOMER) and Section 22 (HARDWARE), neither party may bring a claim under this Agreement more than 24 months after the event that creates the action or claim.
11.6. References in this Section 11 to (a) a “party” includes a party’s affiliates, officers, directors, employees, agents and suppliers and (b) “liability” includes liability arising from contract, tort (including negligence), under any indemnity, strict liability or otherwise, in each case even if a party has been informed of the possibility of that liability. In Section 11, references to “loss” refers to any and all kinds of loss or damage including, without limitation, any damages, fines, costs, charges, fees or other liability.
12. CONFIDENTIALITY
12.1. Customer and LOKE acknowledge that they may each obtain Confidential Information in connection with this Agreement and their relationship. The receiving party shall at all times keep in trust and confidence all such Confidential Information and may use such Confidential Information solely for the purpose of furtherance of the business relationship between the parties as provided in this Agreement.
12.2. Notwithstanding the above, LOKE shall be authorised to disclose Customer’s Confidential Information to contractors or employees of a LOKE entity who have a legitimate business need to have access to such information for the purposes of performing the Services.
12.3. Upon termination or expiration of this Agreement (for any reason and at any time), the receiving party shall if so requested, immediately cease use of and return to the disclosing party or destroy all Confidential Information (including all copies thereof) in the receiving party’s possession, custody, or control, provided that the receiving party may keep archival copies for regulatory purposes and to enforce its rights and subject to the obligations of confidentiality herein.
12.4. This Section 12 shall not apply to information which: (i) has entered the public domain except where such entry is the result of the receiving party’s breach of this Agreement; (ii) was rightfully in the receiving party’s possession prior to disclosure under this Agreement; or (iii) is obtained by the receiving party on a non-confidential basis from a third-party who has the right to disclose such information to the receiving party.
12.5. The receiving party will be authorised to disclose Confidential Information as may be required by applicable law pursuant to a valid order issued by a court or Government agency or relevant regulatory authority (including a stock exchange), provided that the receiving party provides: (i) prior written notice to the disclosing party of such obligation; and (ii) the opportunity to oppose such disclosure.
12.6. Nothing in this Agreement will prohibit either party from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that such party does not violate any of its obligations under this Agreement in connection with such development. In addition, either party shall be free to use for any purpose the residuals resulting from access to or work with such Confidential Information, provided that such party shall maintain the confidentiality of the Confidential Information as provided herein. The term “residuals” means information in non-tangible form which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein, provided such Confidential Information is not expressly incorporated in a tangible form provided by the disclosing party.
12.7. Neither party shall disclose the terms and conditions of this Agreement without the prior written consent of the other party. Any press release regarding this Agreement is subject to the prior review and written approval of both parties. Despite this Section 12, LOKE may identify Customer (including by using Customer’s name and logo) as a customer of LOKE in its customer lists, presentations, website and marketing materials, and to its investors and prospective investors, and may publish a case study about Customer with Customer’s prior approval (not to be unreasonably withheld).
13. CONTENT, PRIVACY AND DATA PROTECTION
13.1. The LOKE Privacy Policy, available on LOKE’s website at www.loke.global, is incorporated into this Agreement by reference as it applies to the Services. The LOKE Privacy Policy sets out how LOKE collects, uses and discloses personal information.
13.2. LOKE makes no claim to Customer’s Content and LOKE will not sell Customer’s Content to third parties.
13.3. Customer is solely responsible for its Content. Customer grants LOKE a worldwide, royalty-free, sublicensable license to use, modify, reproduce and distribute the Content, only as reasonably required to provide the Services. Where the Services include a publicly accessible website or online space related to the Services, LOKE may also publicly perform or publicly display such Content in order to provide the Services.
13.4. LOKE will use Content and Customer Data in accordance with this Agreement, the applicable Services description and the LOKE Privacy Policy. LOKE will not use, disclose or otherwise process Content and Customer Data other than (i) as reasonably necessary to provide the Services, (ii) where instructed or permitted by Customer, (iii) for the purposes described in the LOKE Privacy Policy, (iv) to exercise or protect LOKE’s legal rights or (v) as required by applicable law.
13.5. The parties acknowledge that, in relation to personal information of End Users and of Customer’s Representatives collected or handled in connection with the Services, each of LOKE and Customer collects and holds that personal information for its own purposes and is separately responsible for its own compliance with the Data Protection Legislation. Neither party handles that personal information as agent or contractor for the other. LOKE handles such personal information for the purposes described in the LOKE Privacy Policy, and Customer handles it for its own business purposes. The terms set out in Annexure 8 (Data Protection) apply to the sharing of personal information between the parties.
13.6. By using a Service and accepting this Agreement, Customer agrees that LOKE may collect, use, store and process Content and Customer Data (including outside the country or territory where Customer is located) and transfer such Content and Customer Data to any of LOKE’s Affiliates and/or authorised subcontractors or agents worldwide for their use and processing, in connection with the provision of the Services and the purposes described in the LOKE Privacy Policy, subject to the safeguards for cross-border disclosure set out in Annexure 8. Customer is responsible for ensuring that its own collection of personal information from End Users and its Representatives, and its disclosure of that personal information to LOKE, complies with the Data Protection Legislation, including by providing End Users with a collection notice that identifies LOKE as a recipient of their personal information and refers them to the LOKE Privacy Policy.
13.7. Some of Customer’s Content or other data may be subject to Governmental regulation or otherwise may require security measures beyond those specified by LOKE for the relevant Service. Customer agrees not to input such Content or to otherwise provide such data unless LOKE has first agreed in writing to provide additional required security measures. LOKE is not responsible for compliance with any privacy or data protection law or regulatory provisions applicable to Customer or its industry and not generally applicable to LOKE’s provision of the Services.
13.8. Each party agrees that it, and it will ensure that its related body corporates and each of their Representatives will:
13.8.1. comply with the Data Protection Legislation in relation to any personal information handled in connection with this Agreement;
13.8.2. not use or provide the other party with personal information other than to the extent permitted under this Agreement and provided that that party has complied with the Data Protection Legislation relating to the collection, storage, use, transfer, disclosure of or access to that personal information;
13.8.3. not provide the other party with access to personal information except in accordance with any controlled access conditions, protocols or safeguards as the parties agree in writing between the parties and then only if each of the parties reasonably believe, they are fully compliant with these controlled access conditions, protocols or safeguards; and
13.8.4. notify the other party in writing as soon as is reasonably practicable of any potential or material complaint relating to compliance or alleged non-compliance with the Data Protection Legislation. Each party agrees to act fairly taking into consideration each party’s reputation and good standing in working towards the resolution of that potential or material complaint. In this paragraph, “material complaint” means a complaint which is likely to be material to either party.
13.9. Aggregated Data. LOKE may collect, create and use aggregated or de-identified data derived from Customer Data and from the use of the Platform and Services (“Aggregated Data”) to operate, analyse, develop and improve the Platform and LOKE’s other products and services, including to develop, train and improve analytics, benchmarking, fraud detection and artificial intelligence and machine learning models and features, and to provide insights and benchmarking to LOKE’s customers and others. LOKE owns all rights in Aggregated Data. LOKE will not publish or disclose Aggregated Data in a form that identifies Customer or any individual, and will process any personal information used to create Aggregated Data in accordance with Section 13 and Annexure 8.
14. ORDER FORM, FEES, INVOICING AND PAYMENT
14.1. As consideration, Customer will pay Fees detailed in this Agreement and any Order Form (which may be in the form of an invoice) from time to time as agreed by the parties and in accordance with this agreement.
14.1.1. LOKE will invoice the Invoiced Party.
14.1.2. LOKE will invoice the Invoiced Party, and the Invoiced Party will pay the invoice in accordance with the Payment / Invoice Terms.
14.1.3. Set up fees or Customisation fees (if any) will be paid up front 7 days from receipt of Invoice.
14.1.4. Customer is ultimately responsible to ensure payment is made in a timely fashion for all Accounts.
14.2. If Customer fails to perform their obligations under Section 5.1, or otherwise prevents or delays LOKE from delivering the Services, Customer will remain liable to pay, and must pay, the Platform Use Fee from the Subscription Start Date. If, as a result of any such failure, prevention or delay (including any failure to comply with Section 5.9), any Account has not reached its Go-Live Date by the Target Go-Live Date, then from the Target Go-Live Date: (a) the Platform Use Fee is payable for all Accounts as if each had reached its Go-Live Date; (b) Customer must pay, for each Account that has not reached its Go-Live Date, Transaction Fees equal to the average monthly Transaction Fees per live Account (or, if no Account is live, the estimate set out in the Term Sheet); and (c) the Full Commercial Commencement Date is deemed to have occurred on the Target Go-Live Date.
14.3. Except as otherwise specified in this Agreement or in an agreed Order Form, Fees are based on the Services specified in this Agreement. Additional charges will be payable for all additional services (as set out in an agreed Order Form) requested or required by Customer and provided by LOKE. Such additional charges shall be made known to Customer on confirmation of the requirements.
14.4. Customer is responsible for all chargebacks, refunds, reversals and disputed transactions, and all associated fees, fines and penalties (whether processed using FPP, LOKE Payment Processing or otherwise), and any Fees accrued on such transactions remain payable to LOKE, unless and to the extent Customer has purchased a chargeback protection product from LOKE under an Order Form. Any such product is subject to the caps, exclusions and conditions set out in the relevant Order Form, is a commercial service credit arrangement only, is Customer’s sole remedy in respect of the matters it covers, and is not a contract of insurance.
14.5. All stated prices are exclusive of any applicable freight, handling, shipping or insurance charges, taxes, fees and duties or other similar amounts. Customer shall pay all taxes related to Services purchased pursuant to this Agreement (other than taxes based on LOKE’s net income). LOKE will show any applicable taxes as a separate item on the invoice. If any withholding or deduction for or on account of tax is required by law from any amount payable to LOKE, the amount payable will be increased so that, after the withholding or deduction, LOKE receives the full amount it would have received had no withholding or deduction been required. LOKE may require Customer to provide copies of any applicable tax-exempt certifications.
14.6. The Platform Use Fees, will be due in advance of use of the Platform in accordance with the Payment / Invoice Terms or any Order Form. Notwithstanding the manner and timing set out in the Order Form, LOKE must receive funds prior to the commencement of that 24 months in which Customer wishes to use the Platform.
14.7. Payment terms are net 7 days from the date of invoice. Unless otherwise agreed, all payments shall be made in the Currency. Customer must provide such information as may be required to allow LOKE to render a correct invoice.
14.7.1. In the event that LOKE allows the Customer, an Invoiced Party or an Account to pay in a different currency to the Currency, it will determine the relevant exchange rate at its sole discretion.
14.7.2. In determining the relevant exchange rate, LOKE will act fairly and reasonable, having regard to the cost of conversion the different currency, as well as market quoted exchange rates.
14.8. Any sum not paid by Customer when due shall bear interest from the due date to the date of payment, at a rate of 2 per cent per month, or the maximum rate permitted by law, whichever is less. Interest shall be calculated on a daily basis and shall accrue both before and after any judgment.
14.9. Customer may withhold amounts that it reasonably and in good faith disputes as to the amounts owed. Customer will pay any undisputed fees without setoff, deduction or counter-claim. An amount will only be treated as disputed if Customer notifies LOKE in writing within ten (10) Business Days of receipt of the relevant invoice, identifying in reasonable detail the nature and basis of the dispute and the specific amount disputed; any amount not disputed in this way is deemed accepted and is payable in full. The existence of a dispute does not relieve Customer of its obligation to pay undisputed amounts when due, nor prevent LOKE from exercising its rights (including under Section 15) in respect of unpaid undisputed amounts. After LOKE receives notice of the dispute, LOKE will work with Customer in good faith to resolve the dispute. If the parties are unable to resolve the dispute within 30 days from receipt of such notice, LOKE may, in accordance with clause 21.2, submit the dispute to a suitably qualified independent expert, or terminate the Services without penalty by giving Customer 10 days’ written notice.
14.10. The pricing and terms under this Agreement are exclusive to Customer. Customer also agrees to keep all Fee related information confidential, and as such shall be considered Confidential Information.
14.11. During the Term, LOKE reserves the right to charge additional fees where:
14.11.1. it has made upgrades to, or materially changed the Functionality of, the platform, and Customer, having been notified of the upgrade or change, has adopted the new functionality; and
14.11.2. LOKE has provided Customer at least three (3) weeks’ notice of such increase to the Fees.
14.12. Payment cost adjustment. The Transaction Fees have been set by reference to the interchange, scheme, processing and other payment-related fees disclosed by Customer or reasonably anticipated by LOKE at the date of this Agreement (“Payment Fees”). If the Payment Fees actually incurred are higher than those disclosed or anticipated (including because of changes made by any Card Scheme, acquirer or payment service provider, or changes in Customer’s card mix or transaction profile), LOKE may adjust the Transaction Fees proportionately by giving Customer not less than thirty (30) days’ written notice. Section 14.11 does not apply to such an adjustment.
14.13. Incumbent Provider contributions. Where the Term Sheet provides that LOKE will contribute towards any early termination fee or other cost payable to an Incumbent Provider (an “Incumbent Contribution”):
14.13.1. an Incumbent Contribution is payable only in respect of an Account that has reached its Go-Live Date and is actively using the Platform (including any Hardware), on receipt of written evidence reasonably satisfactory to LOKE that the relevant fee has been paid, and only if Customer is not then in breach of this Agreement;
14.13.2. any claim for an Incumbent Contribution must be made within twenty-four (24) months after the Subscription Start Date, after which LOKE’s obligation to pay it lapses;
14.13.3. an Incumbent Contribution is a one-off commercial rebate subject to any cap in the Term Sheet, and is not a refund, discount or ongoing credit; and
14.13.4. if this Agreement or the relevant Account is terminated before the end of the Minimum Term other than by Customer under Section 16.5 or Section 16.6, Customer must repay the Incumbent Contribution for that Account to LOKE within thirty (30) days of demand.
14.14. Unless otherwise stated in the Term Sheet, Platform Use Fees are invoiced monthly in advance, and Customer must pay all Fees by direct debit (or such other automated payment method as LOKE approves) and maintain a valid direct debit authority throughout the Service Term.
14.15. Deduction and set-off. LOKE may deduct from any amounts collected or held for, or payable to, Customer through the Platform (including sales proceeds collected through LOKE Payment Processing or through LOKE’s payment partner), and may set off against any amount it owes Customer: (a) any Fees and other amounts due to LOKE under this Agreement; (b) any refunds, chargebacks, reversals, disputed transactions and associated fees, fines and penalties for which Customer is responsible; and (c) any amount Customer must repay under Section 14.13. Where LOKE reasonably considers that Customer presents a material risk of chargebacks, refunds or fraud, or Customer has given or received notice of termination, LOKE may (or may instruct its payment partner to) hold a reasonable reserve from those amounts for as long as the risk continues. LOKE will give Customer a statement of any deduction, set-off or reserve.
14.16. End User Fees. LOKE may charge End Users a fee for the use of the Platform’s ordering, payment and loyalty services, in the amount displayed to End Users in the Platform. End User Fees are payable to and retained by LOKE. They are fees for LOKE’s services and are not a surcharge for paying by card. Customer must not describe them as a card surcharge and must not impose any surcharge for paying by card through the Platform where this is prohibited by law or the Payment Scheme Rules.
15. SUSPENSION OF SERVICES
15.1. LOKE is entitled, without prejudice to its rights under Section 16, to suspend any of the Services immediately where:
15.1.1. there is Scheduled Maintenance, provide that such Scheduled Maintenance will be no more than twice per week during the Service Term;
15.1.2. it is necessary due to a Force Majeure Event;
15.1.3. an Emergency occurs;
15.1.4. Unscheduled maintenance. Where reasonably practicable, unscheduled maintenance be performed at times notified in advance to Customer, and LOKE will use reasonable endeavours to ensure that it will minimise disruption to Customer as far as reasonably possible. LOKE shall use reasonable endeavours to give Customer at least one (1) days’ notice in advance of any unscheduled maintenance;
15.1.5. LOKE reasonably suspects fraudulent or illegal use of the Services or that Customer or a third-party is jeopardising the security and integrity of the Services or LOKE’s networks, systems or code;
15.1.6. LOKE reasonably believes that Customer has breached the Agreement, including without limitation, the Fees are not paid when due, (other than a breach which separately gives rise to rights under this Section) and either:
(a) the breach is incapable of remedy; or
(b) the breach is capable of remedy and Customer has not remedied that breach within the period specified in a notice by LOKE.
15.2. Customer agrees and acknowledges that during any suspension under this Section, all Fees shall continue to be payable and paid.
15.3. LOKE may exercise its rights under Section 15.1 in respect of one or more individual Accounts, Affiliates or Franchisees, or in respect of all Accounts. LOKE may suspend all Accounts where the relevant circumstances relate to Customer itself (including non-payment of any amount invoiced to Customer or the Invoiced Party), affect a material number of Accounts, or where Customer has failed to procure that an Affiliate or Franchisee remedies a breach within the period specified in a notice by LOKE.
16. TERM, SERVICE TERM AND TERMINATION
16.1. This Agreement will commence on the Effective Date set out on the Term Sheet and will continue until the Services have been delivered by LOKE to Customer (“Term”).
16.2. The Platform shall be provided to Customer for the Initial Service Term. The Customer and LOKE agree that, unless terminated by either party at least six (6) months prior to the expiry of the Initial Service Term, this Agreement shall automatically renew for successive twelve (12) month terms thereafter (each a “Renewal Service Term”).
16.3. At any time after the date which is six (6) months prior to expiry of the Initial Service Term, this Agreement shall be automatically renewed for successive twelve (12) month terms thereafter (each a “Renewal Service Term”) until and unless either party provides the other party with written notice of termination, with such notice to be delivered at least six (6) months prior to the end of the relevant Renewal Service Term.
16.4. LOKE reserves the right to make changes to the scope and content of all or any part of the Services, including terminating availability of a given Service, subject to giving Customer at least 7 days’ prior notice of such changes. Such changes will become effective only upon the renewal date of the affected Services.
16.5. Without prejudice to any other rights either party may have under this Agreement or at law, this Agreement and any Services provided hereunder may be terminated immediately by either party upon written notice if the other party breaches any of the material provisions of this Agreement and:
16.5.1. the breach is not capable of being cured; or
16.5.2. the other party fails to cure such breach within 30 days after receiving written notice requiring such breach to be cured.
16.6. Either party may request termination of this Agreement and any Services hereunder to the court appointed administrator or receiver or similar officer under applicable law if:
16.6.1. the other party ceases to carry on business as a going concern;
16.6.2. the other party becomes insolvent or the subject of bankruptcy proceedings;
16.6.3. any step is taken for the institution of voluntary or involuntary proceedings in bankruptcy or liquidation; in relation to the other party; or
16.6.4. the other party has a receiver or similar officer appointed with respect to the whole or a substantial part of its assets.
Each party will inform the other in writing of any threat of the events described in (a) to (d) above which may affect its financial situation.
16.7. If Customer places Order Forms which are accepted by LOKE following termination or expiration of this Agreement, such Order Forms shall be governed by the terms and conditions of this Agreement in effect immediately prior to such termination or expiration, unless the parties agree otherwise. However, acceptance by LOKE of any such Order Forms will not be considered to be an extension or renewal of the term of this Agreement.
16.8. If this Agreement has been terminated by LOKE under Section 16.5 or Section 16.6, then Customer agrees to pay all Fees owing for the Term and Service Term, within 30 days after receipt of an invoice.
16.9. Termination of this Agreement does not affect any accrued rights or remedies of the terminating party with respect to breach of this Agreement or any unperformed balance, and the parties agree that such rights and remedies will survive termination of this Agreement.
16.10. In the event that an Affiliate of the Customer, ceases to be an Affiliate of the Customer, at the time at which they cease to be an Affiliate of the Customer, the Affiliate, with the consent of LOKE, will have the option to continue to use the LOKE Platform under the terms and conditions outlined in this Agreement for a period of 12 months before being required to re-sign a new and separate Agreement with LOKE.
16.10.1. Customer is to immediately notify LOKE if an Affiliate that is using the LOKE Platform ceases to be an Affiliate of the Customer.
16.10.2. In the event that this occurs, Customer will no longer be liable for the compliance of the former affiliate with the terms and conditions of this Agreement.
16.10.3. In the event that this occurs, LOKE has the sole right to engage and contract with the former affiliate in its own capacity, and on terms of its choosing.
16.10.4. In the event that this occurs, and LOKE is notified by Customer, LOKE will make every effort to contact the former Affiliate and sign a separate and distinct Agreement with them.
16.11. If this Agreement has been terminated by Customer under Section 16.5 or Section 16.6, Customer must pay all Fees accrued up to the date of termination, and LOKE will refund to Customer any Fees paid in advance for the period after termination, calculated on a pro rata basis.
16.12. If Customer terminates this Agreement, the Customer must pay all Fees up until the effective date of termination including any Transaction Fees that would have been payable if the Platform was fully deployed until the end of the Service Term.
16.12.1. To calculate the Transaction Services Fees payable between the date on which notice of termination is given and the date of effective termination (“Termination Period”), the Customer will pay the greater of:
(a) an average of the total monthly Transaction Services Fees payable in the six (6) months immediately preceding notice of termination (or if the platform has not been fully deployed for at least six (6) months, the amount that would have been paid each month if the Platform was fully deployed), multiplied by the number of months in the Termination Period; and
(b) the actual Transaction Services Fees payable by the Customer during the Termination Period.
16.12.2. To calculate the Platform Use Fees payable during the Termination Period, the Customer will pay the greater of:
(a) an average of the total monthly Platform Use Fees payable in the six (6) months immediately preceding notice of termination (or if the platform has not been fully deployed for at least six (6) months, the Platform Use Fee multiplied by the number of Accounts), multiplied by the number of months in the Termination Period; and
(b) the actual Platform Use Fees payable by the Customer during the Termination Period.
16.13. Notwithstanding any other provision of this Agreement, the parties agree that the minimum commitment period under this Agreement will be twelve (12) months, or such other period as is set out in the Term Sheet or an Order Form (the “Minimum Term”), commencing on the date on which all applicable Platform Use Fees, terminal and other Hardware related fees and transaction based fees are payable in full in accordance with this Agreement, including following the expiry or termination of any third-party agreements, as applicable (the “Full Commercial Commencement Date”). The Minimum Term does not shorten the Initial Service Term, which continues to apply in accordance with Section 16.2.
16.13.1. For the avoidance of doubt:
(a) any period during which deployment or fee commencement is delayed due to the existence of, or compliance with, any third-party agreement will not count toward the Minimum Term, other than a delay to which Section 14.2 applies; and
(b) the Initial Service Term and any Renewal Service Term will be deemed to commence on the Full Commercial Commencement Date for the purposes of calculating the Minimum Term.
16.13.2. If this Agreement or any Account is terminated before the end of the Minimum Term, other than by Customer under Section 16.5 or Section 16.6, Customer must pay LOKE, within thirty (30) days after receipt of an invoice, the Platform Use Fees and Transaction Fees that would have been payable for the remainder of the Minimum Term (calculated in the manner set out in Sections 16.12.1 and 16.12.2 as if the remainder of the Minimum Term were the Termination Period), together with any amount repayable under Section 14.13.
16.14. Customer may only terminate this Agreement or any Account, or claim a refund, because the Services have failed to go live, perform their functional requirements or meet the Service Levels (including under Section 8.2.2, Section 16.5 or paragraph 3.2 of Annexure 4) if:
16.14.1. Customer has given LOKE written notice specifying the failure, with reasonable supporting evidence (such as transaction logs, error reports or screenshots) and a description of its business impact;
16.14.2. LOKE has had at least thirty (30) days after receiving that notice to remedy the failure and has not done so; and
16.14.3. the failure is not caused by, or substantially attributable to: (a) a failure by Customer, its Affiliates or Franchisees to comply with their obligations under this Agreement; (b) defects, limitations or compatibility issues in third-party systems not supplied or controlled by LOKE; (c) changes made by Customer to systems or processes outside the scope agreed with LOKE; (d) a Force Majeure Event; or (e) Customer’s refusal or failure to implement fixes, configuration changes or procedures reasonably recommended by LOKE.
16.14.4. Customer must continue to pay all undisputed Fees while any such failure is being remedied or disputed. Following any such termination, Customer remains liable for all Fees accrued up to the date of termination (including Transaction Fees for transactions processed and Platform Use Fees for the period during which Accounts were available for use) and must repay any Incumbent Contribution and any other rebate, credit or incentive provided by LOKE.
17. TRANSITION SERVICES
17.1. If this Agreement is terminated for any reason, on and from the date of such termination, subject to the payment of the Transition Services Fees, Customer is entitled to receive the Transition Services for the Transition Period.
17.2. On the reasonable request by Customer, the parties must act in good faith to jointly develop a disengagement plan setting out procedures and processes to be implemented by both parties to enable the Service to come to an end with as minimal disruption as possible to Customer and to enable Customer to transition to a different service. LOKE will endeavour to perform these services in such a way that aims to avoid disruption to Customer’s daily operations.
18. ASSIGNMENT AND SUBCONTRACTING
18.1. Neither this Agreement nor any right or obligation under this Agreement may be assigned by a party without the other party’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect. However, LOKE may, without Customer’s consent, assign or novate this Agreement and any right or obligation under it to an Affiliate, to an acquirer of all or part of LOKE’s business or assets, or in connection with a merger, reorganisation or change of control of LOKE, and Customer will sign any document reasonably required to give effect to such an assignment or novation. A change of control of LOKE is not an assignment and does not entitle Customer to terminate this Agreement.
18.2. Notwithstanding Section 18.1, in the event of a sale of all or substantially all of the business or assets of LOKE or its related bodies corporate, LOKE may assign all rights title and interest under this agreement to the buyer of the business or assets.
18.3. Notwithstanding any assignment, or purported assignment by Customer, Customer shall remain liable for the payment of all amounts due under this Agreement whether arising before or after such assignment.
18.4. LOKE may subcontract the performance of the Services to one or more third-party organisations. Any such subcontract shall not relieve LOKE of any of its obligations under this Agreement.
19. EXPORT, RE-EXPORT, TRANSFER & USE CONTROLS
19.1. LOKE products, technology and Services are subject to Australian export control laws and regulations and those of any other applicable jurisdiction. The parties shall comply with such laws and regulations governing use, export, re-export and transfer of products and technology and shall obtain all required authorisations, permits or licenses.
20. MISCELLANEOUS
20.1. LOKE may modify or discontinue Services features to comply with applicable laws and regulations. LOKE will comply with all applicable laws in the provision of the Services to Customer.
21. GENERAL
21.1. Choice of Law.
21.1.1. The validity, interpretation, and performance of this Agreement shall be governed by and construed under the laws of Victoria, Australia (“Jurisdiction”), as if performed wholly within that Jurisdiction and without giving effect to the principles of conflicts of law.
21.1.2. The courts of that Jurisdiction shall have exclusive jurisdiction over any claim arising under this Agreement, provided that either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.
21.1.3. The parties agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to the interpretation or enforcement of this Agreement.
21.2. Dispute Resolution. LOKE and Customer agree that any conflict, dispute, controversy, or claim arising out of or relating to this Agreement or the relationship created by this Agreement, including questions of arbitrability, whether sounding in tort or contract (together or individually a “Dispute”), shall be finally resolved in accordance with the following process:
21.2.1. Escalation of Disputes. Subject to Section 21.2.10 below, the parties agree to attempt to resolve each Dispute by first escalating the Dispute to their respective senior executives. Within fourteen (14) calendar days of written notice of a Dispute, the senior executives will meet in person or by phone and work in good faith to resolve the Dispute.
21.2.2. Mediation. Subject to Section 21.2.10 below, if the parties are unable to resolve the Dispute in accordance with Section 21.2.1 above within thirty (30) days of the written notice of the Dispute, either party may refer the Dispute to mediation administered by the Resolution Institute in accordance with its Mediation Rules then in effect. Unless otherwise agreed, the mediator will be nominated by the Resolution Institute and the mediation will take place in Melbourne.
21.2.3. The parties shall share equally the fees and costs of the mediator and the mediation proceedings, and shall each bear their own costs of participating.
21.2.4. All communications made during the course of the mediation by either of the parties or the mediator are confidential and without prejudice, to the extent permitted by law.
21.2.5. Court proceedings. Subject to Section 21.2.10 below, if the Dispute is not resolved within sixty (60) days of the appointment of the mediator, or if either party refuses or fails to participate in the mediation, or such further period as the parties shall agree in writing, either party may commence proceedings in respect of the Dispute in the courts of Victoria, Australia in accordance with Section 21.1.2.
21.2.6. Nothing in this Section 21.2 prevents either party from commencing court proceedings where the limitation period for a claim is about to expire, or from seeking interim or injunctive relief under Section 21.2.9.
21.2.7. Notwithstanding anything to the contrary, no court or tribunal shall award damages inconsistent with the provisions set forth in Section 11 (LIMITATION AND EXCLUSION OF LIABILITY) of this Agreement. The parties irrevocably waive the award of any such damages.
21.2.8. The language of the mediation and of any proceedings shall be English.
21.2.9. Preliminary Relief. At any point after a Dispute has arisen, in the event interim or provisional relief is necessary to protect the rights or property of a party under Section 12 (CONFIDENTIALITY) or otherwise prior to the resolution of the Dispute, either party may, without waiving any process or remedy under this Agreement, seek such relief from any court of competent jurisdiction.
21.2.10. Force Majeure. Neither party shall be liable for any delay or failure in non-monetary performance obligations due to a Force Majeure Event. The time for performance of the obligations and rights of the defaulting party shall be extended for a period equal to the duration of the Force Majeure Event.
21.3. No Waiver. The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement
21.4. Severability. If one or more terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. However, if this paragraph is invoked and, as a result, the value of this Agreement is materially impaired for either party, then the affected party may terminate this Agreement by written notice with immediate effect.
21.5. Legal Costs. In any proceedings arising out of or relating to: (a) non-payment of undisputed Fees or other amounts; (b) breach of Section 12 (CONFIDENTIALITY); (c) infringement, misappropriation or unauthorised use of the Platform, the Hardware or LOKE’s Intellectual Property; or (d) breach of Section 2 (EXCLUSIVITY), the successful party will be entitled to recover from the other its costs and reasonable fees and expenses (including GST thereon) of lawyers, accountants and other professionals incurred in connection with the proceedings, including on appeal, separately from and in addition to any other amount awarded. In all other proceedings, costs will be determined by the court. This Section 21.5 survives expiry or termination of this Agreement and is not merged into any judgment.
21.6. No Agency. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
21.7. Entire Agreement. This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties except as agreed in writing between the parties. There are no conditions, understandings, agreements, representations or warranties, expressed or implied. This Agreement may only be modified by a written document executed by both parties.
Notwithstanding the effect of the aforementioned Section 21.7, Customer acknowledges that LOKE has a general ‘Terms of Service’ policy (available on LOKE’s website at www.loke.global) which applies to ‘End Users’ and other ‘users’ of its Services.
21.8. Notices. All notices required or permitted under this Agreement shall be in writing. Notices will be deemed to have been given (i) one day after deposit with a commercial express courier specifying next day delivery; or (ii) two days for international courier packages specifying two-day delivery), with written verification of receipt. Notices may also be given by email to the email address of the other party’s nominated contact set out in the Term Sheet (or as later notified in writing), and will be deemed given at the time of sending, unless the sender receives an automated message that the email has not been delivered.
All communications shall be sent to the parties’ addresses shown on the first page of this Agreement or to such other address as may be designated from time to time by a party by giving at least 14 days’ written notice to the other party.
Notwithstanding the above, notices from LOKE regarding general changes in pricing, Services, policies or programs may also be by posting on LOKE.com (or any other website used by LOKE) or by e-mail or fax.
21.9. Surviving Provisions. The following sections shall survive the expiration or earlier termination of this Agreement: Section 1 (DEFINITIONS AND INTERPRETATION),Section 6 (OWNERSHIP), Section 7 (LICENSES), Section 8 (WARRANTIES), Section 9(PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT INDEMNIFICATION), Section 10 (INDEMNITIES BY CUSTOMER), Section 11 (LIMITATION AND EXCLUSION OF LIABILITY), Section 12 (CONFIDENTIALITY), Section 13 (CONTENT, PRIVACY AND DATA PROTECTION), Section 16 (TERM, SERVICE TERM AND TERMINATION), Section 18 (ASSIGNMENT AND SUBCONTRACTING), Section 21.5 (Legal Costs), Section 22 (HARDWARE), Section 23 (FRANCHISE ARRANGEMENTS) and any other provisions which by their nature ought reasonably to survive.
21.10. Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original and together which shall constitute one and the same instrument. A validly executed counterpart that is delivered by one party to the other via electronic transmission (a “Counterpart Image”) shall be valid and binding to the same extent as one delivered physically, provided that the valid signature is clearly visible in the Counterpart Image. If a party delivers a Counterpart Image in place of an originally-executed counterpart, such party shall retain the originally-executed counterpart in its files for at least the duration of this Agreement.
21.11 Ambiguity. This Agreement will not fail, nor will any provision be unenforceable, by reason only of ambiguity, uncertainty, incompleteness, or silence as to any matter. If any term is ambiguous or if this Agreement is silent on any matter necessary for its operation, the parties agree that a term may be implied, and the Agreement must be construed, to the extent lawful, in a manner that is reasonable and consistent with the Agreement as a whole, the parties’ commercial purpose, and all relevant surrounding circumstances known to the parties at the time of contracting.
21.12 Amendment: LOKE may amend these Terms and Conditions from time to time, but only to the extent reasonably necessary to: (a) comply with any law, regulatory requirement or Payment Scheme Rules, or the requirements of a payment service provider; (b) reflect changes to the Platform or the Services, including new features or the withdrawal of features in accordance with Section 16.4; (c) address security, fraud or technical risks; (d) reflect changes in the terms on which LOKE’s third-party suppliers provide services that LOKE uses to provide the Services; or (e) correct errors, clarify ambiguities or make changes that are not detrimental to Customer. LOKE may not use this Section 21.12 to change the Fees (which may only be changed under Section 14.11 or 14.12), the Initial Service Term or the Minimum Term, Section 11 (LIMITATION AND EXCLUSION OF LIABILITY) or either party’s termination rights. LOKE will publish the amended Terms and Conditions on a LOKE Website and give Customer written notice (which may be by email), with a summary of the change, at least thirty (30) days before any amendment that materially reduces Customer’s rights or increases its obligations takes effect. Other amendments take effect from the date specified by LOKE or, if no date is specified, from the date of publication. If an amendment materially and adversely affects Customer, Customer may terminate this Agreement by written notice given before the amendment takes effect, and in that case the payments in Sections 14.13.4, 16.12 and 16.13.2 will not apply to the unexpired Service Term and the amendment will not apply to Customer before termination takes effect. Subject to the foregoing, continued access to or use of the Platform or the Services after the effective date of the amended Terms and Conditions constitutes acceptance of those amended Terms and Conditions.
21.13. Authority. Each party represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations under it, and that the individual signing this Agreement on its behalf is duly authorised to bind it. Where Customer signs this Agreement on behalf of any Affiliate or Franchisee, Customer represents and warrants that it is authorised to do so.
21.14. Compliance. Each party must comply with all applicable anti-bribery and anti-corruption laws (including Division 70 of the Criminal Code Act 1995 (Cth)), the Modern Slavery Act 2018 (Cth) and all applicable sanctions laws, including the Autonomous Sanctions Act 2011 (Cth) and the Charter of the United Nations Act 1945 (Cth). Each party represents and warrants that neither it nor any of its directors or officers is the subject of any sanctions, and must notify the other party promptly if this changes. Either party may terminate this Agreement immediately by written notice if the other party breaches this Section 21.14, or if continuing to perform this Agreement would cause it to breach any sanctions law.
22. HARDWARE
22.1. “Hardware” means payment terminals, card readers, tablets, mobile phones, kiosks, printers, docking stations, chargers and any other devices, peripherals or equipment supplied, loaned or otherwise made available by or on behalf of LOKE to Customer, its Affiliates or Franchisees, including any replacements.
22.2. Ownership. Unless the Term Sheet or an Order Form expressly states that particular Hardware is sold to Customer and Customer has paid for it in full, all Hardware remains the property of LOKE (or its supplier) at all times. Customer has a non-transferable right to use the Hardware solely in connection with the Services during the Service Term. Customer must not sell, lease, lend, charge, encumber, assign or otherwise transfer or part with possession of any Hardware, must keep it free of any lien or security interest, must not remove or obscure any LOKE markings, and must not modify it, install unapproved software on it or use it with any competing product or service.
22.3. Risk and care. Risk of loss of, theft of and damage to the Hardware passes to Customer on delivery. Customer is responsible for the safekeeping and proper use of the Hardware in accordance with LOKE’s reasonable instructions, must take reasonable steps to prevent its loss, theft or damage, and must notify LOKE immediately of any loss, theft, damage or suspected tampering. Customer is liable for the cost of repairing or replacing any Hardware that is lost, stolen or damaged (fair wear and tear excepted).
22.4. Faults and replacement. If any Hardware is faulty because of a manufacturing defect or technical failure not caused by misuse, LOKE will repair or replace it at no cost to Customer. Otherwise, LOKE may charge Customer the then-current replacement cost and any delivery costs. Customer must return any faulty or replaced Hardware to LOKE within fourteen (14) days of receiving the replacement, failing which LOKE may charge the replacement cost of the unreturned item.
22.5. Return. Customer must return all Hardware for an Account to LOKE, at Customer’s cost and in good working condition (fair wear and tear excepted), within fourteen (14) days after: (a) termination or expiry of this Agreement or that Account; (b) the relevant store ceasing to trade or the relevant Affiliate or Franchisee ceasing to be an Affiliate or Franchisee of Customer; or (c) LOKE’s demand, where any Fees relating to that Hardware are overdue. If any Hardware is not returned within that period, or is returned in an unusable condition, Customer must pay LOKE a non-return fee equal to its then-current replacement cost, together with LOKE’s reasonable collection costs.
22.6. Remote management. LOKE may remotely monitor, update, lock, disable or wipe any Hardware, including during any suspension under Section 15 and after termination or expiry of this Agreement or the relevant Account.
22.7. Payment security. Customer must use all payment Hardware in accordance with the Payment Scheme Rules, applicable PCI-DSS requirements and LOKE’s security instructions.
22.8. PPSA. To the extent the Personal Property Securities Act 2009 (Cth) (“PPSA”) applies, Customer acknowledges that LOKE’s interest in the Hardware is a security interest that LOKE may register on the Personal Property Securities Register, and Customer must do anything reasonably required by LOKE to perfect that interest. To the extent permitted by law, Customer waives its right to receive any notice under the PPSA (including a verification statement) and the parties agree that sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply.
23. FRANCHISE ARRANGEMENTS
23.1. This Section 23 applies where any Account is operated by a Franchisee.
23.2. Customer represents and warrants that its franchise agreements, operations manual and (where applicable) franchise disclosure documents entitle it to require each Franchisee to adopt and exclusively use the Platform, the Services and any Hardware, and to pay (or procure payment of) the Fees, in each case as contemplated by this Agreement.
23.3. Customer must procure that, before its first Account reaches its Go-Live Date, each Franchisee agrees to be bound by this Agreement, either by signing a joinder or accession deed in the form reasonably required by LOKE or by accepting LOKE’s terms through LOKE’s onboarding process.
23.4. Customer must ensure that its franchise agreements or operations manual require each Franchisee to comply with its obligations relating to the Platform, the Services and the Hardware, and LOKE may enforce directly against each Franchisee any obligation that the Franchisee has agreed to under Section 23.3.
23.5. At LOKE’s request, Customer must promptly exercise its rights under its franchise agreements to require a Franchisee to comply with this Agreement (including to pay any overdue Fees and to return any Hardware), and must not waive, release or vary any such obligation of a Franchisee without LOKE’s prior written consent.
23.6. LOKE and Customer may amend this Agreement by a written document signed by both of them without the consent of any Franchisee. Each Franchisee that agrees to be bound by this Agreement under Section 23.3 is bound by this Agreement as amended from time to time, subject to any requirement of applicable law (including the Franchising Code of Conduct and the unfair contract terms provisions of the Australian Consumer Law), and Customer must notify each affected Franchisee of any amendment.
23.7. If a Franchisee transfers or sells its store, Customer must procure that the incoming operator agrees to be bound under Section 23.3 and assumes the relevant Account (including any Hardware and the remainder of the Minimum Term) before the transfer completes. The outgoing Franchisee remains liable until that happens.
23.8. If a Franchisee permanently ceases trading at a store (other than as a result of a transfer, relocation or rebranding), Customer may remove the relevant Account on thirty (30) days’ written notice without paying the amounts referred to in Section 16.12 or Section 16.13.2 for that Account, provided that all Fees up to the date of removal have been paid and all Hardware for that Account has been returned in accordance with Section 22. Where the Term Sheet specifies a minimum Number of Accounts, the Platform Use Fee remains payable on that minimum number.
ANNEXURES
ANNEXURE 1 – FUNCTIONALITY
1.1 The scope of works detailed below are based on client’s requirements and existing features provided by the LOKE platform:
All standard LOKE App features including (iOS and Android App):
Branded splash page
Home page
Display of Rewards Points Balance
Pay in store where a user check ins, opening an account into the point of sale whereby a staff member will confirm the user to complete a transaction. No QR code or hardware required (at counter or table)
Order ahead (order at table, click & collect, delivery) (iOS and Android App + web based)
Loyalty
Rewards
Promotions
Customised content
My Setting features
Home
Payment
My Activity
Saved Offers
Voucher code system
Support
1.2 ▪ Service or Experience
1.3 ▪ Technical Support
1.4 ▪ Payment Issues
Settings
1.5 ▪ Notification Status Setting
1.6 ▪ Location Services
1.7 ▪ Terms of Use
1.8 ▪ Privacy Policy
1.9 ▪ Logout
Access to LOKE Back Office Marketing Platform (web based)
Dashboard
Promotions
Push Notification Engine
Customer Database
Reporting
ANNEXURE 2 – PLATFORM SETUP SERVICES
2.1 To enable Customer to be able to access the Platform, LOKE will complete the following to properly configure each Account and ensure that Customer and its Affiliates are sufficiently trained to operate the platform:
Training of the LOKE Back Office Marketing Platform
Assistance with preparation of marketing materials and promotions
Half-day training to head office key stakeholders (online, phone or face to face dependent on accessibility and location)
Remote set up and installation of merchant terminal on POS
ANNEXURE 3 – SUPPORT SERVICES
3.1 LOKE will provide the following Support Services:
Onboarding:
Head Office Training, Access to an Online Help Desk, Training Manuals and Generic Marketing Materials
On ground support from a LOKE representative
Email Support
Phone support
Access to a LOKE help desk including marketing and tutorial materials
ANNEXURE 4 – SERVICE LEVELS
1. SERVICE AVAILABILITY
1.1. The Service is “Available” when the Service is internet accessible.
1.2 The Service is “Unavailable” when it is not “Available”, except that if Service Unavailability is in any way contributed to by Customer, or by an End User, or due to the events set out in Section 4.2.
1.3 After a request for assistance has been made to LOKE via email to support@loke.global, LOKE must, as part of the Service and at its sole expense:
1.3.1. Categorise the request;
1.3.2. Respond acknowledging receipt of the request and notifying the Account owner of the relevant severity category of the request within the response time;
1.3.3. Provide the Account owner with an update on the status of each request in accordance with the update frequency; and
1.3.4. Use reasonable endeavours to resolve the request within the target resolution times set out in paragraph 1.4.
1.4. Each request will be categorised by LOKE (acting reasonably) under the following severity levels, where “Peak Times” means 11:00am to 2:00pm and 5:00pm to 8:00pm (local time in the relevant Territory) on Thursdays, Fridays and Saturdays:
(a) Severity 1: the entire Service is down, or one or more critical functions are unavailable, with a widespread, significant and revenue- or volume-reducing impact on the Account and no workaround available. Response: 90 minutes during Peak Times and 3 hours at all other times. Target resolution: 4 hours during Peak Times and 12 hours at all other times.
(b) Severity 2: one or more critical functions are unavailable or severely degraded, but there is no immediate widespread critical business impact and no workaround available. Response: 2 hours during Peak Times and 4 hours at all other times. Target resolution: 6 hours during Peak Times and 12 hours at all other times.
(c) Severity 3: operational performance is impaired in an isolated, non-critical area while most business operations remain functional. Response: 4 hours during Peak Times and 8 hours at all other times. Target resolution: 2 Business Days.
(d) Severity 4: a request for information or assistance with little or no impact on the operation of the Service. Response: 2 Business Days. Resolution: case by case.
(e) Severity 5: a request for an enhancement or new feature. Response: 2 Business Days. Handled in accordance with Annexure 6.
1.5. Response and resolution times run only while the request is open for reasons within LOKE’s control, and are suspended while LOKE is awaiting information or action from Customer or a third-party, or while any event in Section 4.2 applies.
2. AMENDMENT TO SERVICE LEVELS
2.1. If the Service Levels require amendment and/or adjustment during the Term to better reflect the performance of the Service required by Customer for its operation, such Service Levels will only be amended with the mutual agreement of Customer and LOKE (acting in good faith and reasonably).
3. CONSEQUENCES OF SLA BREACH
3.1. If LOKE fails to meet the Service Levels more than ten (10) times in respect of an Account in any rolling 3-month period, Customer is entitled to a service credit equal to one month’s Platform Use Fee for that Account. If LOKE fails to meet the Service Levels more than thirty (30) times in respect of an Account in any calendar year, Customer is entitled to a service credit equal to three months’ Platform Use Fee for that Account (less any credits already given under this paragraph for that Account in that year).
3.2. If LOKE fails to meet the Service Levels for Severity 1 or Severity 2 requests more than five (5) times in respect of an Account in any 6-month period, Customer is entitled to a service credit equal to three months’ Platform Use Fee for that Account (not cumulative with paragraph 3.1 for the same failures). If such failures affect more than half of all Accounts in the same 6-month period, this will constitute a material breach of this Agreement permitting Customer to terminate this Agreement by written notice given within thirty (30) days after the end of that period, subject to Section 16.14.
3.3. Service credits will be applied against future invoices for Platform Use Fees and do not entitle Customer to a cash refund. Customer must claim a service credit in writing within thirty (30) days after the end of the month in which the entitlement arose. No service credits are available while any undisputed amount is overdue. The total service credits for an Account in any 12-month period will not exceed three months’ Platform Use Fee for that Account.
3.4. The service credits in this paragraph 3 and the termination right in paragraph 3.2 are Customer’s sole and exclusive remedies for any failure to meet the Service Levels.
ANNEXURE 5 – SECURITY PROTOCOL
5.1 LOKE agrees to establish and maintain an effective information security management system (“System”) of a standard that is at least equivalent to Good Industry Practice for a company that offers services equivalent to the Services, at all times during the Service Term.
5.2 The System must cover the security and safeguarding of Customer Data against the destruction, loss, unauthorised access, use and disclosure, alteration or other misuse.
5.3 The System must be designed to ensure all Customer Data, and access to it, will be properly safeguarded at all times and the System must be updated when required, to account for changes in law and Good Industry Practice.
5.4 For any material changes that may be required, LOKE agree to provide written notice of at least ten (10) Business Days, to inform Customer of any effects it may have on the performance of the Services.
5.5 Subject to any provision of this Agreement, all required downtime that may be required, will be done outside of business hours where applicable.
5.6 Without limiting the generality of the foregoing, the System must include:
(a) monitoring controls to enable identification and detection of any actual or suspected Security Breach or risk of Security Breach that may impact the security of Customer Data;
(b) a process to conduct security testing at least annually on all applications, infrastructure, network and operations used in delivering the Services;
(c) appropriate and regular privacy and information security awareness training to LOKE employees, affiliates, agents and vendors including notification to such persons of LOKE information security policies and processes whenever updates occur;
5.7 If LOKE becomes aware of any Security Breach or risk of Security Breach that affects or could affect any Customer Data, it must promptly provide Customer with details of the same and of its proposed strategy to prevent future reoccurrence of such Security Breach or risk of Security Breach.
5.8 LOKE must also promptly take all necessary steps to rectify the actual Security Breach or risk of the Security Breach and keep Customer informed of the progress of the same.
5.9 LOKE must immediately notify Customer of any breach of its obligations under this Annexure 5 (whether by itself or by its personnel) together with any steps it takes (or proposes to take) to remedy the breach; and provide Customer with all assistance reasonably requested by Customer (at LOKE's cost) in connection with any breach by LOKE of its obligations under this Annexure 5.
ANNEXURE 6 – CUSTOMISATIONS / STATEMENT OF WORK
6.1 The parties agree that the Services (and any Customisations) are subject to the terms of the Agreement and the terms set out below.
6.2 The estimated time for delivery regarding Customisations is an estimate only and LOKE does not guarantee that the Customisations will be delivered or fully functional by the estimated time for delivery.
6.3 Payment of the Platform Setup Fee and will be paid in accordance with the Payment / Invoice Terms, unless agreed otherwise.
6.4 Fees associated with any Customisations / Platform Setup are non-refundable (where pre-paid).
6.5 All additional custom Development (i.e.: that which is not included in this Agreement), will be subject to a separate Order Form and will be paid within 7 days of invoice.
6.6 LOKE also agrees to make all reasonable efforts to provide the Customer with an estimate of custom Development timelines, within two weeks from receiving a request for proposal from Customer.
ANNEXURE 7 – CUSTOMER AFFILIATES
7.1 The Customer expressly represents any Affiliates selected by LOKE, and that it is duly authorised to procure, and mandate the use of, the LOKE Platform and Services on their behalf.
7.2 For the avoidance of doubt, each license to use the LOKE Platform, provided to an Affiliate of the Customer is governed by the terms of this Agreement.
7.3 The Customer can request for other Affiliates, to be considered for the project
In the event that LOKE approves this request, the requested Affiliate will also be bound to the terms of this Agreement.
In the event that this request is approved, the requested Affiliated will be considered to be added to the list above.
7.4 In the event that Customer acquires other parties that, prior to the acquisition are using the LOKE Platform, any existing agreements between LOKE and the other parties will remain in place until properly terminated or renegotiated. The terms of any renegotiation however, will be not less favourable to LOKE.
7.5 Customer acknowledges that the LOKE Platform and Services are made available, and priced on the basis that, the Accounts are used for materially similar venue types to those set out in the Term Sheet.
7.6 Whilst the same terms are available for new Affiliates that are materially similar in nature to the venue types set out in the Term Sheet, they do not necessarily apply to Affiliates that are materially different.
ANNEXURE 8 – DATA PROTECTION
8.1 Roles. The parties acknowledge that, in respect of Shared Personal Information, each party collects and holds that information in its own right and is responsible for its own compliance with the Data Protection Legislation. Nothing in this Agreement appoints either party as the agent or contractor of the other for the handling of personal information. “Shared Personal Information” means personal information relating to End Users and Customer’s Representatives that is collected through the Platform or otherwise disclosed by one party to the other in connection with the Services, including names, contact details, order and transaction history, loyalty and store-credit balances, device and usage data and marketing preferences.
8.2 Purposes. LOKE will handle Shared Personal Information for the purposes of providing, securing, supporting and improving the Platform and Services, complying with law, and the other purposes described in the LOKE Privacy Policy. Customer will handle Shared Personal Information for the purposes of supplying goods and services to End Users, operating its loyalty and marketing programmes and its own business purposes. Each party will handle Shared Personal Information only for purposes that are permitted under the Data Protection Legislation.
8.3 Collection notices and marketing. Customer will ensure that End Users and its Representatives are given a collection notice that complies with Australian Privacy Principle 5 (or the equivalent requirement in the applicable Territory), identifies LOKE as a recipient of their personal information and refers them to the LOKE Privacy Policy. LOKE will make the LOKE Privacy Policy available in the Application. Each party is responsible for ensuring that any direct marketing it sends complies with the Spam Act 2003 (Cth), Australian Privacy Principle 7 and any equivalent law in the applicable Territory, including by obtaining any consent required and honouring unsubscribe requests, and will promptly inform the other party of any opt-out that affects marketing sent through the Platform.
8.4 Access and correction. Each party will deal with requests from End Users for access to or correction of their personal information in respect of the personal information it holds. Where a party receives a request that relates to personal information held by the other party, it will refer the request to the other party without undue delay and the parties will provide each other with reasonable assistance, at their own cost, to respond within the time limits in the Data Protection Legislation.
8.5 Security. Each party will take reasonable steps to protect Shared Personal Information from misuse, interference and loss, and from unauthorised access, modification or disclosure, as required by Australian Privacy Principle 11. LOKE’s measures in respect of Customer Data are set out in Annexure 5 (Security Protocol).
8.6 Data breaches. Each party will notify the other without undue delay, and in any event within 48 hours, after becoming aware of an actual or suspected eligible data breach (as defined in the Privacy Act 1988 (Cth)) affecting Shared Personal Information, and will provide reasonable information and co-operation to enable the other party to assess the breach and meet its obligations under the Notifiable Data Breaches scheme. The parties will co-operate so that, where both are required to notify the Office of the Australian Information Commissioner and affected individuals in respect of the same breach, only one statement is made where the Privacy Act permits. Nothing in this paragraph limits LOKE’s obligations under Annexure 5.
8.7 Cross-border disclosure. Customer acknowledges that LOKE’s Platform is hosted and supported by LOKE Affiliates and service providers in Australia, the United Kingdom, the United States, Singapore and the Philippines, and that LOKE will disclose Shared Personal Information to those recipients in accordance with Australian Privacy Principle 8, having taken reasonable steps to ensure the recipients handle the information in accordance with the Australian Privacy Principles. Customer’s collection notice will inform End Users that their personal information may be disclosed to recipients in those countries.
8.8 Restrictions. Neither party will sell Shared Personal Information to third parties. Customer will not export End User personal information from the Platform for use with a competing platform during the Term except as permitted under Section 17 (Transition Services), and will not use LOKE’s contact details or those of LOKE’s other customers obtained through the Platform for any purpose.
8.9 Retention and termination. On termination or expiry of this Agreement, LOKE will make Customer Data available to Customer in accordance with Section 17 (Transition Services) and will thereafter retain Shared Personal Information only for so long as is necessary for the purposes described in the LOKE Privacy Policy or as required by law, after which it will be destroyed or de-identified in accordance with Australian Privacy Principle 11.2.
8.10 Liability. Each party is liable for its own compliance with the Data Protection Legislation in respect of Shared Personal Information. Liability for breach of this Annexure 8 is subject to Section 11, save that Section 11.1.1 applies to a breach of this Annexure as it applies to a breach of Section 13.
8.11 Conflict. If there is any conflict between this Annexure 8 and the rest of this Agreement in relation to personal information, this Annexure 8 prevails.
Version dated 12 October 2026.