DEFINITIONS AND INTERPRETATION
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 in Item 5 of Annexure 1, 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 loke.com.au (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 in Item 1 Annexure 1.
“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 2) 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.
“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.
"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 PayPal, Braintree Payments).
"Fees" means the Platform Setup Fee, the Platform Use Fee and the Transition Services Fee, all as set out in Annexure 1.
“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.
the functionality of the Platform set out in Annexure 2; and
any features, enhancements, product development or innovations introduced by LOKE which may, at LOKE’s discretion, be made available to the Customer.
“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.
“Initial Platform Training Fee” means the fees set out in in Annexure 1.
“Initial Service Term” means the period commencing on the Subscription Start Date and continuing for a period set out in Annexure 1.
“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).
"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.
"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.
“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 Annexure 1.
“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 3, 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 in Annexure 1.
“Representatives” means any employees, officers, contractors, representatives or agents of a party.
"Restricted Countries” has the meaning as set out in LOKE’s standard merchant agreement available at its website from time to time;
"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 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 6.
"Service Levels" means the service levels set out in Annexure 5.
“Subscription Start Date” means the date set out in Annexure 1.
"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 4.
“Term” has the meaning given to it in Section 16.1.
“Territory” means the territory set out in Annexure 1, 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 in Annexure 1;
"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:
LOKE making available Customer Data; and
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.
In this Agreement, unless the contrary intention appears otherwise:
monetary amounts are expressed in the Currency;
headings are for convenience only and do not affect interpretation;
words importing the singular include the plural and vice versa;
other grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
an expression importing a natural person includes a partnership, joint venture, association, corporation, trading trust or other body corporate or Government agency;
a reference to any thing includes a part of that thing;
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;
a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
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;
a reference to a Section, annexure, appendix or schedule is a reference to a Section in or annexure, appendix or schedule to this Agreement;
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
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.
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.
A permitted use case under Section 2.1 is:
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
A use case that is approved by LOKE in writing, at its sole discretion.
Customer also agrees that it will not expand or extend the use of pre-existing services or software during the Term.
SCOPE AND PROVISION OF PLATFORM
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.
LOKE agrees to:
subject to receipt by LOKE of the Platform Setup Fee (if any), provide the Platform Setup Services to Customer;
enable the Platform to facilitate payments through: (i) Facilitated Payment Processing; or (ii) LOKE Payment Processing, as set out in Annexure 1;
provide the Platform to Customer, in accordance with this Agreement and the Service Levels, for the duration of the Service Term;
comply with the Security Protocols;
provide the Support Services to Customer, for the duration of the Service Term;
provide the Customisations (if any) in accordance with the terms of this Agreement;
subject to any provision in this Agreement, during the Services Term, use commercially reasonable efforts to make the Platform available;
use reasonable commercial effort to ensure that the Platform is free of Malicious Code; and
subject to receipt by LOKE of the Transition Services Fee, provide the Transition Services (if any) to Customer.
Notwithstanding the foregoing and subject to any law, Customer acknowledges and agrees that:
the Services may not be uninterrupted or free from error or fault;
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;
use of the Platform by Customer or any material (including any financial or transaction reports) provided by LOKE will be uninterrupted or error free;
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;
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);
it is solely responsible to determine that the Services are ‘fit for purpose’;
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 Annexure 5.
The Service Levels will not apply to Outages that result from:
acts or omissions by third-party communications networks and facilities, including the internet.
a Force Majeure Event;
a failure or malfunction of Customer’s equipment, software or power supply, unless caused by LOKE;
an act or an omission of Customer or a person under Customer’s direction or control;
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
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.
Customer agrees to
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
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.
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 duly authorised by the End User and was obtained with the correct permissions, notices and consents, 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.
Customer agrees to be bound by the LOKE Terms and Conditions which is located on their website at https://loke.global/loke-uk-terms-and-conditions and is incorporated herein by reference, as it is applicable to the Services.
Customer agrees that it will not, and it will ensure that its Representatives do not:
use the Platform to store or transmit Malicious Code;
interfere with or disrupt the integrity or performance of the Platform or LOKE’s information technology systems; or
attempt to gain unauthorised access to the Platform or their related systems or networks.
Customer agrees to have in place reasonable safeguards, precautions and security procedures to:
protect the Platform from access or use by an unauthorised access and use; and
protect LOKE’s information technology systems, including implementing reasonable procedures to guard against Malicious Code, unauthorised interception, access, use or loss.
Customer shall notify LOKE promptly of any matters in Section 5.3 and 5.4 of which it becomes aware.
Where Customer chooses to use a third-party to enable the Facilitated Payment Processing:
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.
LOKE remains fully responsible for ensuring that the third-party and its service satisfies the applicable Payment Scheme Rules; and
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.
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).
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:
owned by a party prior to commencement of any Services under this Agreement; or
otherwise developed by that party or that party’s third-party supplier, outside the scope of this Agreement.
(the “Pre-Existing Technology”).
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”).
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.
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.
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.
For the avoidance of doubt, Customer cannot promote or make the Platform available to anyone other than Customer, those Customer Affiliates listed in Annexure 8, or their End Users.
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;
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;
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;
reproduce, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Platform or any materials contained on the Platform;
distribute, disclose or allow use of the Platform or any materials contained on the Platform, in any format or by any other means;
scrape, store, publish, transmit, transfer, communicate, distribute or disseminate, the Platform or any materials contained on the Platform
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;
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;
allow the unauthorised use, copying, publication or dissemination of the Platform by any third-party;
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
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:
would violate any law, including and privacy or data security law or the Payment Scheme Rules;
is fraudulent or criminal in nature; or
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.
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.
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.
LOKE may allow a third-party, to access Customer Data to facilitate the Service and as reasonably required for the enhancement and commercialisation of the Service.
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.
Customer’s sole and exclusive remedy for breach of warranty shall be, at LOKE’s sole discretion:
re-performance of the services; or
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.
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.
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.
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.
PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT INDEMNIFICATION
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.
promptly notify LOKE in writing of the IP Claim (or threat thereof), and any subsequent litigation updates; and
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.
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.
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.
LOKE has no obligation for any IP Claim based on:
compliance with any designs, specifications, requirements or instructions provided by Customer or a third-party on Customer’s behalf;
modification of a Service by Customer or a third-party;
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
combination, operation or use of a Service with non-LOKE products, software, services or business processes.
This Section states LOKE’s entire obligation and Customer’s exclusive remedy regarding any claims for intellectual property infringement.
INDEMNITIES BY CUSTOMER
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 6 (OWNERSHIP), Section 7 (LICENSES), Section 12 (CONFIDENTIALITY) and Section 13 (CONTENT, PRIVACY AND DATA PROTECTION); or (2) as a result of Customer or any person for whom Customer is responsible committing a negligent fraudulent or wrongful act or omission, except to the extent that that the loss, damage, liability, claim, cost or expense is caused by LOKE’s breach, negligence or wrongful act.
LIMITATION AND EXCLUSION OF LIABILITY
Notwithstanding Section 10 of this Agreement, nothing in this Agreement limits or excludes the liability of:
either party to the other for:
bodily injury or death resulting directly from the negligence of the other party;
fraud or fraudulent misrepresentation;
a breach of Section 12 (CONFIDENTIALITY);
a breach of Section 13 (CONTENT, PRIVACY AND DATA PROTECTION); or
any liability that cannot be limited or excluded under applicable law.
Customer to LOKE arising out of:
Customer’s breach of Section 7 (LICENSES);
failure to pay any amounts due to LOKE under this Agreement; or
any liability of Customer under Section 5.2.
Subject to Section 11.1 above and Section 11.3 below, each party’s total aggregate liability is limited to the greater of:
one hundred thousand pounds (GBP 100,000) or
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.
Subject to Section 11.1 above, and notwithstanding anything else in this Agreement to the contrary, neither party will be liable for any:
special, incidental, indirect or consequential damages;
loss of any of the following: profits, revenue, business, anticipated savings, use of any product or service, opportunity, goodwill or reputation;
lost or damaged data; or
wasted expenditure (other than any expenditure necessarily incurred to discharge the innocent party’s duty or to mitigate its losses).
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.
Except for Customer’s breach of LOKE’s intellectual or proprietary rights, neither party may bring a claim under this Agreement more than 24 months after the event that creates the action or claim.
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.
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.
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.
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.
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.
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.
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.
Neither party shall disclose the terms and conditions of this Agreement without the prior written consent of the other party. Any press release or publication regarding this Agreement is subject to both the prior review and the written approval of both parties.
CONTENT, PRIVACY AND DATA PROTECTION
LOKE privacy statement for the Services is located on their website at https://loke.global/loke-uk-privacy-policy and is incorporated herein by reference, as it is applicable to the Services. The privacy statement sets forth your and our rights and responsibilities with regard to your personal information.
You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Web site.
You agree to monitor our Web site periodically to review such revisions. By using our services after modifications to the privacy statement, you have agreed to these modifications.
You acknowledge that if you do not agree to any such modification, you may terminate this Agreement.
LOKE makes no claim to Customer’s Content and LOKE will not sell Customer’s Content to third parties.
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.
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. Customer is responsible for obtaining consent from its End Users and its Representatives to such processing and transfer of Content and Customer Data, including international transfers.
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.
Each party agrees that it, and it will ensure that its related body corporates and each of their Representatives will:
comply with all privacy and data protection laws;
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 all privacy laws relating to the collection, storage, use, transfer, disclosure of or access to that personal information;
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
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 any privacy and data protection laws. 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.
ORDER FORM, FEES, INVOICING AND PAYMENT
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.
LOKE will invoice the party listed in Item 12 of Annexure 1 (“Invoiced Party”).
LOKE will invoice the Invoiced Party, and the Invoiced Party will pay the invoice in accordance with Item 13 of Annexure 1.
Set up fees or customisation (if any) will be paid up front 7 days from receipt of Invoice.
Customer is ultimately responsible to ensure payment is made in a timely fashion for all Accounts.
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 in accordance with Annexure 1.
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.
LOKE has no responsibility for any charge backs on which Fees have been accrued using FPP and such Fees remain payable to LOKE under this Agreement.
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. LOKE may gross up any Fees if a withholding prevents LOKE from receiving the amount otherwise due to LOKE for the Services. LOKE may require Customer to provide copies of any applicable tax-exempt certifications.
The Platform Use Fees, will be due in advance of use of the Platform in the manner and timing detailed the Annexure 1, 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.
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.
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.
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.
Any sum not paid by Customer when due shall bear interest from the due date to the date of payment, at a rate of 1 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.
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. If Customer withholds any payment due to a dispute, it must notify LOKE in writing of any disputed fees within 15 days of the invoice date and provide LOKE with written details of the dispute. 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.
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.
During the Term, LOKE reserves the right to charge additional fees where:
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
LOKE has provided Customer at least three (3) months’ notice of such increase to the Fees.
Where Customer does not agree to such increased Fees, Customer may terminate this Agreement on expiry of the three-month notice period, and LOKE will refund to Customer that portion of the Fees for any use of the Platform paid for but not used, calculated on a pro-rata basis
SUSPENSION OF SERVICES
LOKE is entitled, without prejudice to its rights under Section 16, to suspend any of the Services immediately where:
there is Scheduled Maintenance, provide that such Scheduled Maintenance will be no more than twice per week during the Service Term;
it is necessary due to a Force Majeure Event;
an Emergency occurs;
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 reasonably possible. LOKE shall use reasonable endeavours to give Customer at least one (1) days' notice in advance of any unscheduled maintenance;
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;
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:
the breach is incapable of remedy; or
the breach is capable of remedy and Customer has not remedied that breach within the period specified in a notice by LOKE.
Customer agrees and acknowledges that during any suspension under this Section, all Fees shall continue to be payable and paid.
TERM, SERVICE TERM AND TERMINATION
This Agreement will commence on the Effective Date and will continue until the Services have been delivered by LOKE to Customer (“Term”).
The Platform shall be provided to Customer for the Initial Service Term. The parties agree that, unless terminated by either party, in accordance with this agreement, prior to the 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 twelve-month prior written notice to the end of the Renewal Service Term.
At any time after the expiry of the Initial Service Term, either party may terminate this Agreement, for any reason, by giving the other party not less than twelve (12) months prior written notice.
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.
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:
the breach is not capable of being cured; or
the other party fails to cure such breach within 30 days after receiving written notice requiring such breach to be cured.
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:
the other party ceases to carry on business as a going concern;
the other party becomes insolvent or the subject of bankruptcy proceedings;
any step is taken for the institution of voluntary or involuntary proceedings in bankruptcy or liquidation; in relation to the other party; or
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.
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.
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. Where this Agreement is terminated by Customer under Section 16.5 or Section 16.6, LOKE will refund Customer that portion of the Fees for any use of the Platform, calculated on a pro rata basis.
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.
In the event that an Affiliate of the Customer, ceases to become an Affiliate of the Customer, and at the time at which they cease to become 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.
Customer is to immediately notify LOKE if an Affiliate that is using the LOKE Platform ceases toto become an Affiliate of the Customer.
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.
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.
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.
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.
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.
ASSIGNMENT AND SUBCONTRACTING
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 assign this Agreement and any right or obligation under it to an Affiliate without Customer’s approval.
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.
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.
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.
EXPORT, RE-EXPORT, TRANSFER & USE CONTROLS
LOKE products, technology and Services are subject to the laws of England and Wales and local export control laws and regulations. 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.
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.
Choice of Law.
The validity, interpretation, and performance of this Agreement shall be governed by and construed under the laws of England and Wales (“Jurisdiction”), as if performed wholly within that Jurisdiction and without giving effect to the principles of conflicts of law.
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.
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.
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:
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.
Mandatory, Non-Binding 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, either party may initiate a mandatory, non-binding mediation. The mediation shall be in accordance with the Judicial Arbitration and Mediation Services (“JAMS”) mediation procedures then in effect. The JAMS mediation procedures are hereby incorporated by reference into this Section.
The parties shall share all fees and costs of the mediation proceedings.
All communications made during the course of the mediation by either of the parties or the mediator are intended to be confidential and privileged to the extent permitted by law.
Binding Arbitration. Subject to Section 21.2.10 below, if the parties are unable to resolve the dispute through the mediation process, within 60 days of the appointment of the mediator, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by binding arbitration under the JAMS arbitration rules then in effect, which are hereby incorporated by reference to this Section.
The arbitration tribunal shall consist of a sole arbitrator, selected in accordance with the JAMS arbitration rules. The arbitrator shall set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an adequate opportunity to discover relevant information regarding the subject matter of the Dispute. After the arbitrator issues the written award, the prevailing party may apply to the arbitrator for recovery of all reasonable costs and expenses associated with the arbitration, including, but not limited to, the fees of the arbitrator, administrative fees, and reasonable attorneys’ fees. Such costs and expenses will be awarded at the arbitrator’s discretion.
Notwithstanding anything to the contrary, the arbitrator shall exceed his or her powers if the arbitrator awards damages inconsistent with the provisions set forth in Section 21.2 of this Agreement. The parties irrevocably waive the award of any such damages.
The language to be used in the arbitration shall be English.
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.
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.
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
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.
Attorneys’ Fees. In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement and shall survive expiration or termination and shall not be merged into any such judgment.
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.
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 21.8, Customer acknowledges that LOKE has a general ‘Terms of Service’ policy (which can be viewed at: http://tidy-assets.s3.amazonaws.com/terms/terms-links.html ) which applies to ‘End Users’ and other ‘users’ of its Services.
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.
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.
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).
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.