Global Master Agreement

Effective: 2 April 2026

Background

A. The Customer wishes for the Supplier to provide it with the Hardware, Software and/or Services.

B. This Agreement establishes a master framework under which the Supplier may agree to supply the Hardware, Software and/or Services to the Customer from time to time.

C. By entering into an Official Order or Statement of Work, the Customer acknowledges that it has read and understood this Agreement and that it agrees to this Agreement.

1. Engagement

1.1 The Supplier agrees to provide the Hardware, Software and/or Services to the Customer on the terms of this Agreement.

1.2 The Hardware, Software and/or Services to be provided will be set out in Official Orders or Statements of Work. The Supplier is not obliged to provide any Hardware, Software and/or Services unless an Official Order or Statement of Work is executed by the parties. An Official Order or Statement of Work, once executed, will form part of this Agreement.

1.3 The Supplier will provide to the Customer from time to time copies of the Documentation containing sufficient up-to-date information for the proper use of the POS Solution. Such Documentation may be supplied in electronic form.

1.4 If there is any conflict or inconsistency between any of the parts of this Agreement, the terms of the part first appearing below shall prevail to the extent of the conflict or inconsistency:

(a) any variation to the Master Agreement, an Official Order or Statement of Work or the Additional Terms agreed in writing between the parties;

(b) any Official Order or Statement of Work;

(d) the Master Agreement.

2. Hardware

Delivery and Acceptance

2.1 The Customer acknowledges and agrees:

(a) that, unless otherwise specified in an Official Order, delivery dates provided are a guide only and the Supplier does not guarantee fixed delivery times; and

(b) the Supplier is not responsible for delays in delivery of Hardware caused by any delay in providing Customer Materials; acts or omissions of any third party or third party service or equipment; or changes in any Official Order.

2.2 The Supplier may, at its election:

(a) substitute equivalent goods for Hardware originally ordered if such Hardware is not available at the time of ordering and is not expected to be available at a reasonable future date; or

(b) put any Hardware on back order if such Hardware is not available at the time of ordering but is expected to be available at a reasonable future date.

2.3 The Supplier may revise Hardware Fees for substituted or back ordered Hardware under clause 2.2 by reasonable notice to the Customer.

2.4 Delivery of Hardware is deemed to occur on the earlier of when:

(a) the Customer or Customer’s nominated carrier takes possession of the Hardware; or

(b) the Hardware is delivered to the Customer’s nominated address.

2.5 In addition to any non-excludable guarantees that may apply to Hardware under the Consumer Law and any other applicable law, the Supplier warrants that the Hardware supplied under this Agreement will:

(a) upon delivery to the Site(s), conform to the specifications set out in the Official Order and be free from material defects in design, material and workmanship; and

(b) upon the Supplier confirming that the POS Solution is ready for use in a live environment, be of merchantable quality and in good working order.

2.6 Other than with respect to any non-excludable guarantees that apply to the Hardware under the Consumer Law and other applicable law and the warranties set out in clause 2.5, all implied rights, representations, guarantees, conditions, warranties, undertakings and other remedies that the Customer may otherwise have in relation to the Hardware are waived and excluded from the Agreement, to the maximum extent permitted by law.

2.7 The Customer must give the Supplier written notice within 5 Business Days of Delivery if the Customer reasonably considers there is any defect or damage, shortage in quantity or failure to comply with the warranties in clause 2.5, or in the case of any latent defect, notice must be given within 5 Business Days of the latent defect becoming apparent.

2.8 The Supplier is not liable for any loss, damage or malfunction of any Hardware as a result of fair wear or tear, or as a result of any of the following events:

(a) the Customer or any third party make any further use of that Hardware after giving notice in accordance with clause 2.7;

(b) a defect arises because the Customer or any third party has failed to follow the Supplier’s (or the manufacturer’s) oral or written instructions for the storage, commissioning, installation, use or maintenance of the Hardware or best industry practice;

(d) the Customer or any third party alters or repairs the Hardware without the Supplier’s prior written consent;

(e) the Customer losing the Hardware;

(f) theft of Hardware from any Site; or

(g) a defect arises as a result of the Customer’s or any third party’s wilful or accidental damage, negligence, or abnormal storage or working conditions.

2.9 The Customer must indemnify the Supplier from and hold it harmless from and against all and any loss and/or damage that the Supplier incurs as a result of any of the events listed in clause 2.8, including, where applicable the cost of replacing or repairing any lost Hardware or damage to the Hardware.

2.10 If the Customer rejects Hardware under clause 2.7 then the Supplier may, at its option:

(a) replace the rejected Hardware or supply equivalent goods;

(b) repair the rejected Hardware;

(c) reimburse the Customer for the cost of replacing or repairing the rejected Hardware or of acquiring equivalent goods;

(d) if the Customer has not paid the Fees for the rejected Hardware, release the Customer from any obligation to pay the Fees for the rejected Hardware; or

(e) if the Customer has paid the Fees for the rejected Hardware, refund the Fees for the rejected Hardware to the Customer, subject to the Customer first restoring unencumbered title to the rejected Hardware to the Supplier.

2.11 Once the Supplier has complied with clause 2.10, the Supplier is not liable to the Customer, and the Customer will have no further remedy arising out of or in connection with the rejected Hardware's failure under clause 2.7.

2.12 Where Hardware is covered by an original manufacturer’s warranty, the Customer may contact the manufacturer or importer directly in relation to any warranty claim in respect of Hardware.

2.13 Nothing in this Agreement limits the Customer’s rights under applicable Consumer Law to make a claim in respect of a non-excludable guarantee. If the Supplier breaches any guarantee under the Consumer Law that applies to the supply of the Hardware to the Customer and the Supplier’s liability for breach of any guarantees under the Consumer Law or any other applicable law can be limited, the Supplier’s liability arising from any breach of those guarantees (if any) is limited as set out in clause 19.11.

2.14 The terms of this Agreement apply to any repaired or replacement Hardware supplied by the Supplier.

2.15 If any Hardware is removed from the Site for repair under any applicable manufacturer’s warranty, the Customer may, subject to availability, rent replacement Hardware from the Supplier for a fee specified by the Supplier.

Risk

2.16 The Customer bears all risk of damage to or theft or loss of the Hardware from the time of Delivery. The Customer must, at its cost, obtain insurance for the full replacement value of the Hardware against all risks relating to Hardware of that kind and maintain such insurance from the time the risk in the Hardware passes to the Customer until the time that title to the Hardware passes to the Customer (as applicable to purchased Hardware).

Returns

2.17 Subject to clauses 19 and 20, returns of defective Hardware will only be accepted by the Supplier if the Hardware is:

(a) accompanied by proof of purchase, which is consistent with the items purchased;

(b) returned within a reasonable time at the Customer’s cost and in as close a condition to that in which it was delivered to the Customer as is reasonable; and

Purchased Hardware

2.18 Clauses 2.18 to 2.20 apply where the Customer is purchasing Hardware from the Supplier, as detailed in the relevant Official Order (Purchased Hardware).

2.19 The parties agree that title of the Purchased Hardware will pass to the Customer on the later of:

(a) the Customer’s payment of all amounts owing relevant to the Hardware; and

(b) Delivery of the Hardware.

2.20 Prior to title in the Hardware passing to the Customer under clause 2.19, the Customer must:

(a) inform the Supplier as soon as is reasonably practicable of any damage to the Hardware, including the extent of such damage and its cause;

(b) not operate any damaged Hardware without the prior written consent of the Supplier;

(c) keep the Hardware separately identified and stored and keep the Supplier fully informed of all material matters relating to the Hardware;

(d) permit the Supplier or its duly authorised representative to inspect the Hardware at all reasonable times and for such purpose to enter upon the Customer’s premises or any premises at which the Hardware may be located, and grant reasonable access and facilities for such inspection;

(e) not, without the prior written consent of the Supplier, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Hardware or allow the creation of any mortgage, charge, lien or other security interest in respect of it; and

(f) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Supplier in the Hardware.

Rented Hardware

2.21 Clauses 2.21 to 2.33 apply where the Customer is renting Hardware from the Supplier as part of the POS Solution, as detailed in the relevant Official Order (Rented Hardware).

2.22 Subject to payment of any deposit and provision of any required guarantee, direct debit form and/or credit application as specified in the Official Order, the Supplier will supply and/or procure the supply of the Rented Hardware, substantially in accordance with the Official Order.

2.23 The Supplier is at all times the owner of and retains title to the Rented Hardware. The Customer only has the right to use the Rented Hardware in accordance with this Agreement and as a bailee only.

2.24 The Customer must:

(a) keep the Rented Hardware in good condition and working order, normal fair wear, and tear excepted;

(b) use, service and maintain the Rented Hardware in accordance with the manufacturer’s instructions and recommendations;

(c) not sell, lease, assign, charge, encumber or otherwise deal with the Rented Hardware in any way inconsistent with the Supplier’s ownership; and

(d) not modify the Rented Hardware.

2.25 The Customer may move the Rented Hardware to meet the operational needs of its venue but must only be within the Site. If Rented Hardware needs to be relocated to a different site, the Customer must contact the Supplier for support and charges will apply for a technician to attend.

2.26 The Customer agrees to provide reasonable access for the Supplier to inspect the Rented Hardware to confirm its existence, condition, and proper maintenance.

2.27 The Customer acknowledges and agrees that the Supplier may, at any time in its absolute discretion, on prior written notice to the Customer, choose to replace or update Rented Hardware where the Supplier reasonably believes this is required to ensure optimal provision of the Rented Hardware and/or Services. Unless stated otherwise in an Official Order, the Supplier will be responsible for the costs incurred to replace or update Rented Hardware in the following circumstances only:

(a) if the replacement is required due to a defect covered under warranty, or we are not permitted to charge you by law;

(b) if the Customer pays for the use of Rented Hardware on the basis of an ongoing monthly subscription, and provided that the Customer is not liable for such replacement pursuant to clause 2.29; and

(c) where such replacement or update is required to ensure compliance with applicable Payment Card Industry Data Security Standards,

and in all other circumstances, the Customer will be liable for the costs incurred to replace or update Rented Hardware.

2.28 If the Supplier elects to replace or update Rented Hardware in accordance with clause 2.25, the Customer must provide all necessary assistance and cooperation reasonably required by the Supplier to enable the replacement or update.

2.29 The Customer acknowledges and agrees that after the Supplier delivers Rented Hardware, it is liable for any loss or damage to Rented Hardware and will be responsible for the cost of its replacement, except to the extent caused or contributed to by the Supplier or as otherwise covered under warranty. If Rented Hardware is damaged or not operational for any reason at any time during the Term the Customer must immediately notify the Supplier and return Rented Hardware to the Supplier to be assessed.

2.30 If the Customer returns Rented Hardware to the Supplier in accordance with clause 2.29 the Supplier may, following an assessment and in its absolute discretion, determine the hardware to be faulty due to damage by the Customer and choose to either repair or replace the Rented Hardware. The Customer acknowledges and agrees that if it is found to be at fault for any damage, it will be liable for the amount equal to that which is required for such repair or replacement of the Rented Hardware and any associated handling or service fees (including any delivery or postage costs).

2.31 On termination or expiry of this Agreement or the relevant Official Order for any reason, the Customer acknowledges and agrees that it must return Rented Hardware to the Supplier as soon as reasonably possible. If required by law, the Supplier will be responsible for the proper disposal of Rented Hardware in accordance with the applicable rules and regulations and accept all associated costs.

2.32 The Supplier reserves the right to charge the Customer a fee for any Rented Hardware that is not returned in accordance with clause 2.31.

2.33 Upon return of the Rented Hardware and provided it is in good working order, the Supplier will return any deposit paid to the Customer that relates to that Rented Hardware within 5 Business Days.

Removal of Personal Information

2.34 It is the Customer’s responsibility to remove any Personal Information and software not included in the POS Solution, that is stored on or in Hardware before returning it to us. The Supplier will not be liable for any consequences arising from a failure to remove such information.

Customer responsibilities related to Hardware

2.35 The Customer must:

(a) not make any representation or give any warranty in relation to the Hardware not expressly authorised by the Supplier in writing.

(b) not do anything which might affect the reputation of any of the Hardware, the Supplier or its Related Bodies Corporate;

(d) not admit liability on the Supplier’s behalf in respect of any complaint or claim in relation to the Hardware; and

(e) not resolve or settle any complaint or claim in relation to the Hardware, including where doing so may result in the Supplier incurring any liability to any party.

2.36 The Supplier is not liable for:

(a) the content or security of any communications that the Customer receives, accesses, transmits or relies upon when using any Hardware and/or Service; or

(b) carrying out any installation, integration, configuration or setup of any Hardware and/or Service,

except as expressly set out in an Official Order or Statement of Work.

2.37 With respect to any proposed installation, integration, commencement or start dates specified in an Official Order or Statement of Work, if any:

(a) such time is not of the essence and such dates are estimates only; and

(b) the Customer must pay all costs and expenses that the Supplier may suffer or incur as a result of any delay in the installation, procurement, integration, commencement and/or implementation of any Hardware and/or Service caused directly or indirectly by the Customer.

3. Security

3.1 This clause 3 applies where:

(a) the Supplier is an Australian or New Zealand entity; and/or

(b) the Hardware is located in Australia or New Zealand; and

(c) the Supplier rents the Hardware in accordance with clauses 2.21 to 2.33 or the Supplier has agreed to accept payment of the Hardware Fees in instalments or after delivery of the Hardware.

3.2 Any terms capitalised in this clause 3 and not already defined in clause 3 have the same meaning given to those terms in the PPSA or the equivalent meaning under the Personal Property Securities Act 1999 (NZ).

Security Interest

3.3 The Customer acknowledges and agrees that:

(a) the Supplier’s interest in the Hardware is a Security Interest;

(b) this Agreement constitutes a Security Agreement for the purposes and within the meaning of the PPSA; and

3.4 The Customer agrees:

(a) that it will not consent to, grant, seek to grant or deal with any Security Interest in the Hardware adverse to the Supplier's Security Interest in the Hardware;

(b) that the Supplier may register its Security Interest and the Customer agrees to provide all information and execute all documents necessary to enable the Supplier to register and perfect its Security Interest in the Hardware under the PPSA;

(c) to promptly inform the Supplier in writing of any change of name of the Customer or of any other details relating to this document that appear on the Personal Property Securities Register; and

(d) to pay all of the Supplier’s costs and expenses incurred in:

(i) preparing, lodging or registering a Financing Statement or Financing Change Statement in relation to the Security Interest granted to the Supplier under this Agreement;

(ii) maintaining and amending those registrations; and

(iii) enforcing any Security Interest granted to the Supplier under this Agreement.

Powers of the Supplier

3.5 Upon the occurrence of a Default Event (which includes the failure to make due and punctual payments of the Hardware Fees), the Supplier:

(a) may do any other act or thing as the Supplier consider appropriate in order to protect their interests;

(b) has the right (without prejudice to any other rights and remedies it may have) to recover, detach, remove and/or sell the Hardware or any part of it or them (and its employees, agents or contractors may without notice enter any place the Supplier believes the Hardware to be without committing a trespass);

(c) will have no obligation to make good any damage caused by such inspection, search, recovery, detachment or removal of the Hardware under clause 3.5(b); and

(d) will not be liable for and the Customer will indemnify and keep the Supplier indemnified from and against any costs, claims, damages or losses expended or suffered by the Supplier, whether or not contemplated by the parties, in recovering the Hardware (including legal costs on a full indemnity basis).

Exclusion of PPSA provisions

3.6 To the extent permitted by law and for the purposes of the Australian PPSA:

(a) if there is any inconsistency between the Supplier's rights under this clause 3 and its rights under Chapter 4 of the PPSA, this clause 3 prevails;

(b) if Chapter 4 of the PPSA would otherwise apply to the enforcement of the Supplier's Security Interest, the Customer agrees that the following provisions of the PPSA will not apply:

(i) section 95 (notice of removal of accession to the extent that it requires the Supplier to give notice to the Customer);

(ii) section 96 (person with an interest in the whole may retain accession);

(iii) section 121(4) (enforcement of liquid assets - notice to the Customer);

(iv) section 125 (obligation to dispose of or retain collateral);

(v) section 130 (notice of disposal, to the extent that it requires the Supplier to give a notice to the Customer);

(vi) section 132(3)(d) (contents of statement of account after disposal);

(vii) section 132(4) (statement of account if no disposal);

(viii) section 135 (notice of retention);

(ix) section 142 (redemption of collateral); and

(x) section 143 (reinstatement of security agreement); and

(c) the Customer waives its right to receive any notice under the PPSA (including notice of a verification statement after registration or variation of a registration) unless a requirement for notice cannot be excluded under the PPSA.

3.7 To the extent permitted by law and for the purposes of the New Zealand Personal Property Securities Act 1999, the Customer waives its rights under and agrees to contract out of sections 114(1)(a), 125, 126, 127, 131, 133, 134, and further agrees to waive and contract out of it rights to receive notices, information or statements (as the case may be) under sections 116, 120(2), 121, 129.

4. Software and related Services

Acknowledgment

4.1 The Customer acknowledges and agrees that:

(a) if the Customer does not have the minimum hardware and communications infrastructure recommended by the Supplier, the Customer’s ability to receive the Software and Services may be diminished; and

(b) the availability of the Software and Services will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions as set out in the Documentation.

4.2 Any open-source software provided by the Supplier may be used according to the terms and conditions of the specific licence under which the relevant open-source software is distributed, and if and to the extent permissible by applicable law, is provided "as is".

Customer Media

4.3 Where the Software and Services are to be incorporated into the Customer’s website or digital media platform (Customer Media), the Customer:

(a) must provide a website and subdomain for the Supplier to provide the Software and Services;

(b) must provide access to relevant technical staff to allow the Supplier to incorporate the Customer Media; and

Licence

4.4 Subject to clause 4.6, the Supplier grants to the Customer a non-exclusive, non-transferable, non-sublicensable (except to End Users) licence for the term set out in an Official Order to use the Software solely for the Customer’s business purposes (and where applicable, from the Hardware, at the Site(s) and/or on the System) in accordance with the Documentation and any other the restrictions specified in an Official Order.

4.5 The Customer acknowledges and agrees that:

(a) additional user subscriptions for the Software may be requested during the term of the Official Order by submitting a new Official Order;

(b) subject to clause 4.5(c), if the Customer wishes to reduce its user subscriptions for the Software after the Initial Term outlined in the Official Order, it may do so in accordance with any required period of prior written notice to the Supplier as detailed in the Official Order;

(c) the number of user subscriptions cannot be decreased below the original user subscriptions in the Official Order as at the commencement of that Official Order; and

(d) unless specified by the Supplier, user subscriptions are user specific and cannot be shared or used by more than one user (except that user subscriptions may be reassigned to new users of the Customer, in replacement of former users who will no longer use the relevant Software.

4.6 The Customer must not:

(a) modify, adapt, alter, translate, or create derivative works from the Software;

(b) merge the Software with other software;

(c) sublicense, lease, rent, loan, or otherwise transfer the Software to any third party, reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Software;

(d) otherwise use or copy the Software or the Source Code except that Customer may make a reasonable number of copies of the Software solely for backup or archival purposes. All copies of the Software will remain subject to the terms of this Agreement;

(e) publish the results of any benchmark tests run on the Software or any component of the Software;

(f) use the Software to provide application service provider (ASP) services or bureau services;

(g) use the Software to develop a product that is competitive with the Software;

(h) enable or use functionality in the Software that is not licensed to Customer;

(i) permit unauthorised access to the Software;

(j) use the Software in any way that could damage the reputation or goodwill of the Supplier or cause damage or injury to any person or property;

(k) create a subdomain which is offensive or defamatory;

(l) pass themselves off as the owner of the Software;

(m) store, transmit, distribute or introduce malicious programs into the Supplier’s systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);

(n) make fraudulent offers of goods or services;

(o) carry out security breaches or disruptions of network communication;

(p) circumvent user authentication or security of any of the Supplier’s hosts, networks or accounts or those of its customers or third party providers;

(q) use the POS Solution to engage in fraudulent behaviour, defame or harass any third party, or in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of the Supplier or the Supplier’s other customers; or

(r) infringe the Supplier’s or any third party’s Intellectual Property Rights,

(s) without the Supplier’s prior written consent.

4.7 The Customer must not, and must ensure each End User does not:

(a) perform any illegal or unlawful acts in connection with receipt or use of the POS Solution;

(b) use the POS Solution if the Customer or End User is a direct competitor to any of the POS Solution, or a sales agent, consultant or distributor for a direct competitor of any Software or Services; or

4.8 In the event that the Customer or End User does any of the acts contemplated by clauses 4.6 or 4.7 without the Supplier’s consent, the Supplier may suspend the Customer’s access to the POS Solution at any time and the warranty under clause 6.4 is null and void.

4.9 The Supplier reserves the right to, at any time by written notice to the Customer, remove from the POS Solution any Customer Data which the Supplier reasonably believes breaches this Agreement.

4.10 If the Customer requires use of the Source Code to develop an integration with the Software, the Customer must send a written request to the Supplier identifying relevant details of the product with which integration is sought and the nature of the information required. Upon receipt of that notice, the Supplier, at its sole discretion, may make available to the Customer the information that may reasonably be required to allow the Customer to develop the integration.

Backup and security

4.11 The Customer acknowledges that:

(a) the Customer must not resupply the Software and Services to third parties, or permit third parties to access the Software and Services;

(b) where the Customer is hosting the Software, the Customer must backup any Customer Data or any other data as often as is necessary to ensure that it can be recovered following an outage of the Software or Services, and the Supplier is not responsible for performing backups;

(c) the Customer must ensure that its computer and telecommunications network is secure, and the Supplier is not responsible for the security of the Customer Material or the computer and telecommunications network of the Customer;

(d) the Customer must ensure all usernames, passwords and other sensitive information associated with the Software and Services are kept secure from unauthorised use or access at all times; and

(e) the Customer must notify the Supplier if there is a security breach or unauthorised access to the Software and Services or disclosure of sensitive information including usernames and passwords.

Monitoring

4.12 Where relevant and required, the Customer must allow the Supplier or its nominated representatives to:

(a) remotely monitor the Customer’s use of the System;

(b) access the Customer’s premises; and

to verify the Customer’s compliance with this Agreement.

4.13 The Supplier will give the Customer at least 5 days’ written notice of any physical inspection, which must occur during the Customer’s normal business hours in a manner that does not unreasonably interfere with the Customer’s normal operations. The Customer must promptly give the Supplier, or the Supplier’s nominated representatives, any assistance they require.

4.14 If the inspection or verification reveals that the Customer has failed to comply with this Agreement, then:

(a) the Supplier’s costs in connection with that inspection or verification must be paid by the Customer;

(b) any amounts including the Fees which have been underpaid by the Customer are deemed to be overdue Fees and must be immediately paid to the Supplier together with Interest.

Acceptance

4.15 Where the Supplier submits to the Customer any Deliverables for testing, each Deliverable will be deemed accepted if:

(a) no certificate of acceptance or rejection has been received by the Supplier within 2 Business Days after the completion of the acceptance testing period; or

(b) if the Deliverable is placed into live production use by the Customer.

5. Subscription services related to End Users

5.1 This clause 5 applies where the Software and Services relate to End Users who are members or customers of the Customer, and those services reference or effect loyalty programs associated with those members or customers.

Eligibility of membership

5.2 The Customer is responsible for determining which individuals are eligible to use the Software and Services as an End User and for importing the End User’s information (including Personal Information) into the Customer Media.

5.3 The Customer is responsible for all data entry and data maintenance of the Software and Services.

5.4 The Customer will actively promote the Software and Services to End Users, in accordance with a marketing campaign determined and agreed by both Supplier and Customer, including the promotion of associated advertising, on digital signage throughout the Customers premises.

Points

5.5 The Customer acknowledges and agrees (to the extent applicable), Points have earn and redemption methods and rates which may be limited, withdrawn, modified, cancelled, increased, decreased or otherwise amended from time to time.

5.6 In the course of providing the Customer the Software and Services, the Supplier will provide the Customer with appropriate access to the Customer Media and the Services to facilitate the issuance and redemption of Points.

5.7 On termination of this Agreement, any Points held by End Users will remain an obligation between the End User and the Customer.

Redemption providers

5.8 In the course of providing the Software and Services, the Supplier may provide the Customer with access to a variety of redemption providers for End Users to issue and redeem Points.

5.9 The Supplier is not responsible for, or liable to, any redemption provider or End User in relation to the issuance and redemption of Points.

6. Limitations and Third Party Products

Limitations

6.1 Subject to clauses 19.10 and 19.11 where applicable, the Supplier makes no representation and gives no warranty:

(a) that the POS Solution, any hardware, software or other goods supplied in connection with this Agreement will be uninterrupted, error free, free of defects, secure, timely, meet the Customer’s requirements or be fit for any particular purpose or function except as set out in this Agreement;

(b) that the POS Solution will not contain viruses or other malicious software, code, or scripts;

(d) that the Documentation is complete, accurate or sufficient to explain the POS Solution; or

(e) about the suitability or performance of any third party service provider referred to the Customer by the Supplier.

6.2 The Customer acknowledges and agrees that:

(a) the Software and Services are provided “as is,” and the Customer does not guarantee the functionality of the Software or a particular result from the use or integration of the Software;

(b) any timeframes given by the Supplier to the Customer in relation to the supply of the POS Solution are estimates only and are not binding on the Supplier;

(d) the Supplier is not responsible for the resilience or availability of any communications network over which the POS Solution is supplied;

(e) it is the Customer’s sole responsibility to determine that the POS Solution meets the needs of its business; and

(f) the POS Solution may not be available (including at a certain speed) from time to time.

Third Party Products

6.3 There may be Third Party Products supplied to the Customer as part of the POS Solution, and which are used in connection with the Software.

6.4 The Supplier warrants that it has and will continue to have the necessary rights from Third Party Suppliers to grant licences to the Customer to use the Third Party Products.

6.5 The Customer acknowledges that Fees for Support Services for Third Party Products are based on the fees charged to the Supplier by the Third Party Supplier. The Supplier reserves its right to pass on Third Party Supplier fee increases.

6.6 The Customer must comply with the licence terms applicable to Third Party Products. The Customer acknowledges that it is the Customer’s responsibility to monitor its usage of the Software (including Third Party Products) to ensure that it is properly, legally licensed. Any increase in the Customer’s usage of the Software over and above the relevant restriction in an Official Order may require an increase in the number of licences for its Third Party Products.

6.7 To the extent that Third Party Products are provided to the Customer pursuant to this Agreement, the warranties and indemnities provided to the Customer are limited to those that the Supplier is able to obtain from the Third Party Supplier.

7. Hosting Services

7.1 This clause 7 applies where an Official Order or Statement of Work includes the provision of Hosting Services.

Supply

7.2 The Supplier will provide the Customer with the Hosting Services in accordance with the scope and specifications set out in the Official Order or Statement of Work.

7.3 The Supplier will put in place and manage the backup of the Customer Data in accordance with industry standards on a daily and weekly basis.

7.4 The Supplier will store:

(a) daily backups for a period of 7 days; and

(b) weekly backups for a period of 4 weeks,

but does not otherwise guarantee or warrant that backups will be available after expiry of these periods.

7.5 It is the Customer’s sole responsibility to back up the Customer Data if it requires access to backups after the expiry of the periods set out in clause 7.4.

7.6 The Supplier reserves the right to remotely measure the Customer’s usage of the Hosting Services to ensure billing accuracy, hosting adequacy, and technical efficiency.

Dedicated hosting

7.7 Clauses 7.8 and 7.9 apply only if the Hosting Services are provided on dedicated infrastructure.

7.8 If the Customer is approaching the limits of the hosting specifications, the Supplier will advise the Customer of any recommended changes in the hosting specifications and provide an estimate of adjusted Fees.

7.9 If the Customer does not accept the increase to the hosting specifications and the adjusted Fees, the Customer acknowledges that the Hosting Services may be impaired or may cease to function and that the Supplier is not liable for any Loss or Damage suffered by the Customer as a result of the Hosting Services being impaired or ceasing to function.

Variations

7.10 The Customer may request to vary the scope of Hosting Services, and the Supplier may, but is not obliged to, agree to the Customer’s request provided the Customer pays any additional fees and agrees to any other terms applicable to the varied services.

7.11 If the scope of Hosting Services is varied under clause 7.10, the changes to the Fees and Hosting Services will take effect from the next invoice or payment date. This Agreement will then continue to apply to the Hosting Services as amended.

Performance

7.12 The Supplier will use all reasonable commercial endeavours to meet the performance standards set out in Annexure B – Hosting Services Performance Standards in providing the Hosting Services to the Customer.

7.13 If the Supplier fails to meet the performance standards, the Supplier will at no cost to the Customer:

(a) investigate the reasons for the failure to meet the performance standards;

(b) prepare and deliver a report to the Customer identifying the failure and any findings in relation to the cause of the failure;

(d) take reasonable action to ensure the failure does not occur again; and

(e) inform the Customer of the progress of any remedial action taken under this clause 7.13.

7.14 The performance standards do not apply to any period of time the Hosting Services are unavailable due to maintenance in accordance with clauses 7.15 to 7.17 or as otherwise defined in the Annexure B – Hosting Services Performance Standards.

Maintenance

7.15 The Supplier may carry out routine maintenance from time to time.

7.16 The Supplier will make reasonable efforts to provide at least 48 hours’ prior notice for downtime scheduled to exceed 3 hours, which will be completed outside of standard business hours wherever possible.

7.17 The Customer acknowledges and agrees that the Supplier may from time to time be required to take urgent maintenance to protect the security, functionality and integrity of the Hosting Services. The Supplier will take all reasonable steps to provide prior notice to the Customer and otherwise minimise the duration of any urgent maintenance required. Where practicable, that maintenance will be conducted outside office hours.

8. Support Services

8.1 This clause 8 applies where an Official Order or Statement of Work includes the provision of Support Services.

8.2 The Support Services will commence on live production use of the Software or as otherwise specified in the Official Order and where applicable, will be detailed in a ‘Support Handbook’ provided to the Customer.

8.3 Unless otherwise agreed in writing by the Supplier, all Support Services will be performed remotely. The Supplier may engage a Related Body Corporate or external service providers for the provision of support services under this Agreement. Some of these Related Bodies Corporate and external service providers may be located overseas, including Australia, NZ, the UK, the EU, the Philippines, India, Vietnam, Sri Lanka and the USA.

8.4 The Customer must co-operate with the Supplier in any manner reasonably required by the Supplier in order to carry out the Support Services, including by:

(a) providing the Supplier with access to information and data,

(b) making available suitably qualified Personnel;

(c) providing access to the Customer’s systems for the purpose of carrying out diagnostics and correction of Software Defects;

(d) subject to clause 8.3, providing access for Supplier support staff at the Site(s) including by obtaining all permissions necessary to obtain such access;

(e) subject to clause 8.3, when Supplier Personnel are working at the Site(s), providing facilities and supplies reasonably required by the Supplier, such as power and computer consumables; and

(f) allowing the Supplier to take all or any part of the POS Solution offline temporarily while the Supplier carries out the Support Services.

8.5 The Customer acknowledges that the Supplier does not provide a managed service.

8.6 In addition to any other rights the Supplier may have, the Supplier may, on 12 months’ written notice to the Customer:

(a) cease providing support for a particular System; and

(b) cease providing Support Services for a version of the Software if that version of the Software is not one of the two most recent major releases of the Software made available by the Supplier.

9. Implementation Services

9.1 Where an Official Order or Statement of Work includes the provision of Implementation Services and Deliverables, Annexure A – Implementation Services is incorporated into this Agreement and will apply.

10. Change Control

10.1 The Customer may, by giving written notice to the Supplier at any time during the Term, request a change to the POS Solution.

10.2 The Supplier may (but is not obliged to):

(a) prepare a fee estimate for the implementation of the change at its standard rates then in force (if on a time and materials basis), or prepare a written quote for the implementation of the change (if at a fixed price);

(b) prepare a quote for any increase or decrease in the Fees; and

10.3 The Customer must inform the Supplier in writing of whether or not it wishes the requested change to be made. No change will be implemented or deemed to have been agreed unless it is agreed by the parties in writing.

10.4 The Supplier specifically denies any implied or express representation that the POS Solution will be fit to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified in the Documentation as being compatible with the POS Solution.

11. Customer Responsibilities

11.1 The Customer must:

(a) provide the Supplier with any information and assistance and timely instructions necessary to enable the Supplier to provide the POS Solution;

(b) have all resources necessary to receive the POS Solution, including hardware, software, telecommunication resources and internet access acceptable to the Supplier;

(c) and must ensure End Users, only use the POS Solution for the purpose for which it has been developed and in accordance with the Documentation;

(d) where required, procure that each End User enters into an agreement with the Customer regarding the use of the Software on terms acceptable to the Supplier;

(e) ensure its premises are suitable and maintained in a manner suitable for the installation, maintenance and use of the POS Solution;

(f) provide all necessary access to Customer Material, equipment and Personnel;

(g) comply with the recommendations of the Supplier from time to time in relation to the Customer’s network and use of the POS Solution including backup routines and virus checking;

(h) give the Supplier reasonable access to the Customer’s servers, network including by installation of any remote support tools and hardware monitoring and reporting tools nominated by the Supplier from time to time and maintain a reliable internet connection;

(i) cooperate with the Supplier, act reasonably and follow the Supplier’s reasonable directions in connection with this Agreement and receipt of the Services; and

(j) where required, arrange safe and timely access to the Site for Customer Personnel to provision, install, support and maintain the applicable Hardware.

11.2 The Customer acknowledges and agrees that, if the Customer does not comply with clause 11.2, then the Supplier is not obliged to supply the POS Solution to the Customer.

Authorised instructions

11.3 The Customer is solely responsible for controlling and regulating which of the Customer’s employees, contractors, or other persons may access and use the POS Solution.

11.4 The Supplier will accept instructions and enquiries from any of the Customer’s employees, contractors, or other persons on the reasonable assumption that the person instructing the Supplier is duly authorised to do so per clause 11.3.

11.5 The Customer accepts responsibility for the acts, omissions and defaults of anyone using the POS Solutions on the Customer’s behalf, and warrant that all such persons have full legal authority to use the POS Solution on its behalf.

11.6 The Customer acknowledges that the Supplier is not liable for any Loss or Damage of the Customer arising out of the Supplier providing Services to anyone acting on the Customer’s behalf.

12. Customer Material and Equipment

12.1 Nothing in this Agreement transfers any Intellectual Property Rights in Customer Material to the Supplier or transfers or assigns title in the Customer’s equipment to the Supplier.

12.2 The Supplier is not responsible for the Customer’s equipment. The Customer must ensure that its equipment is:

(a) compatible or interoperable with the Hardware and/or Services; and

(b) maintained, including by ensuring that it is used, and all applicable security and other patches are applied, in accordance with the manufacturer’s recommendations.

12.3 The Customer must ensure that:

(a) End Users are fully entitled (and where applicable, licensed) to disclose Customer Material to the Supplier;

(b) all Customer Material is accurate and up-to-date;

(c) the exercising of the Supplier’s rights under the licence granted pursuant to clause 14.7 does not breach any applicable law or any person’s rights; and

(d) the Customer has obtained all necessary consents required for the Supplier to exercise its rights under the licence granted pursuant to clause 14.7.

12.4 Some of the Supplier’s products and services may be “cloud-based” and hosted using physical servers located in third party data centres (or any virtual servers implemented on those physical servers). For cloud-based Hardware and/or Services, Customer Material may be hosted by the Supplier or its third party service providers on hardware or infrastructure located inside or outside Australia that may or may not be owned by the Supplier.

12.5 Data loss and corruption is unpredictable and can occur from time to time. In the event of any loss, destruction, alteration, corruption or damage to any of Customer Material that is stored in any Hardware and/or Services, subject to any non-excludable remedies available to you under applicable law:

(a) the Customer’s sole and exclusive remedy as against the Supplier, will be to request that the Supplier use reasonable endeavours to restore that data from the latest back-up that the Supplier maintains; and

(b) the Supplier will not have any liability for any such loss, destruction, alteration, corruption or damage, or for any unauthorised access or disclosure, to Customer Material unless it is caused by the Supplier’s wilful misconduct or intentional breach of this Agreement.

12.6 For the avoidance of doubt, the Supplier does not provide data backup services unless an applicable Official Order or Statement of Work clearly states that data backup services will be provided.

12.7 The Customer acknowledges and agrees that:

(a) the Supplier may provide Customer Material and any information or documents received in connection with the Customer’s receipt of the POS Solution to any company in the Supplier group as reasonably required for the Supplier to provide the Services;

(b) each Supplier group company may use Customer Material and any such information or documents for any purpose in connection with this Agreement or the provision of Services to the Customer, including without limitation to assist with the performance of the Supplier’s obligations and direct marketing purposes.

13. Fees

13.1 The Customer must pay the Fees to the Supplier in accordance with this clause 13, the Official Order or Statement of Work and any Payment Schedule. All Fees which are paid on a recurring monthly, quarterly, six-monthly or annual basis, as set out in the Official Order or Statement of Work, will be paid to the Supplier by direct debit.

13.2 Where applicable and as set out in the relevant Official Order or Statement of Work, the Customer may be required to complete a credit application and direct debit form and/or obtain a guarantee for payment of amounts payable by the Customer under the Agreement.

13.3 The Supplier may increase the Fees applicable to the POS Solution not more than once in any 12 month period and by not less than 3.5%, unless otherwise set out in the relevant Official Order or Statement of Work.

Expenses

13.4 The Customer must reimburse the Supplier for out-of-pocket expenses (including travel and accommodation expenses) reasonably incurred by the Supplier in providing the Hardware, Software and/or Services (Expenses).

13.5 The Supplier will obtain the prior consent of the Customer prior to incurring Expenses that individually exceed AUD $500, NZD $500, USD $500 or GBP £500, as applicable (with the currency being the relevant currency in the Jurisdiction).

Invoices

13.6 The Supplier will invoice the Customer from time to time for the Fees in accordance with the relevant Official Order and/or Statement of Work.

13.7 The Customer must pay an invoice issued under clause 13.6 by the date specified on the invoice or the Payment Schedule or, if not specified, within 30 days after the date the invoice is issued.

13.8 Unless otherwise specified in the Official Order or Statement of Work, the Customer must pay the Fees in the local currency of the Jurisdiction.

13.9 Payment of all sums due to the Supplier under this Agreement must be made by the Customer in full without any set off, deduction, or withholding whatsoever.

Fee disputes

13.10 If the Customer reasonably believes an invoice contains an error and the Customer wishes to dispute the invoice, the Customer must:

(a) notify the Supplier before the due date of the invoice;

(b) pay the invoice in full; and

13.11 The Supplier will investigate the dispute and if the Supplier agrees the invoice contains an error, the Supplier will issue a replacement invoice and refund any overpaid amount to the Customer. If the Supplier does not accept that an invoice is incorrect or that any part is not due then the disputed invoice shall be referred for resolution under clause 22.

Deferral of performance

13.12 If the Customer does not pay the Fees or any portion of the Fees as required by this Agreement, the Supplier reserves its right to:

(a) suspend the supply of any or all Hardware (whether or not relevant to those Fees);

(b) defer performance of all or any part of the Services (whether or not relevant to those Fees);

(d) recover, disable, or suspend access to Software;

(e) repossess any Rented Hardware or Hardware delivered to the Customer that the Customer has not fully paid the Supplier for;

(f) charge Interest; and

(g) charge a late payment fee,

until the outstanding Fees are paid, without limiting any other remedies available to the Supplier.

13.13 The Customer is liable by way of liquidated damages for all amounts payable under this clause plus all costs and expenses of debt collection and enforcement (including but not limited to internal administration fees, legal costs on a solicitor own client basis, the Supplier’s collection agency costs, and bank dishonour fees).

14. Intellectual Property

No assignment

14.1 The parties agree that Intellectual Property Rights (including future Intellectual Property Rights) in:

(a) the Software;

(b) the Services;

(d) the Supplier Material;

(e) any Updates;

(f) any Upgrades;

(g) any Developed Material;

(h) the Documentation;

(i) configuration of the POS Solution;

(j) anything otherwise created by the Supplier in the performance of the Service or provision of the Software;

(k) any modification, upgrade, update, or derivative work of anything contemplated by clauses 14.1(a) to 14.1(j),

(together, Property) are the property of the Supplier and the Supplier does not assign to the Customer any Intellectual Property Rights in the Property.

14.2 The Customer must not:

(a) remove, alter, or obscure any proprietary notices (including copyright notices) on the Property;

(b) represent that it owns any of the Supplier’s Property; or

(c) do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute the Supplier’s Property, nor authorise the commission of any act that would or might be inconsistent with the Supplier’s Property.

Customer assignment of Intellectual Property Rights

14.3 To the extent that any Intellectual Property Rights in any Property do not automatically vest in the Supplier, the Customer assigns absolutely to the Supplier all Intellectual Property Rights in or in relation to any Property.

14.4 If requested by the Supplier, the Customer must bring into existence, sign, execute, or otherwise deal with any document to take any action which may be necessary to enable the vesting of the Intellectual Property Rights contemplated by clause 14.1 in the Supplier, including where applicable and on the Supplier’s request, an irrevocable written consent from Customer employees to the infringement of any moral rights.

Licence to Property

14.5 Subject to receipt of payment for the Fees and provided that the Customer is not in default of this Agreement, the Supplier grants to the Customer a non-exclusive licence to use the Property to the extent necessary to receive and obtain the benefit of the Software and/or Services.

14.6 The licence granted under clause 14.5:

(a) must not be sublicensed (except to End Users); and

(b) is not transferrable or assignable,

without the Supplier’s written consent.

Licence of Customer Material

14.7 The Customer grants to the Supplier a non-exclusive, irrevocable, transferable, assignable, sub-licensable, global licence to exercise the Intellectual Property Rights in any Customer Material in connection with the Supplier providing Hardware, Software and/or Services to the Customer, including to use and modify the Customer Material.

14.8 The licence granted under clause 14.7 includes the right to sub- license to third parties as necessary to provide the Hardware, Software and/or Services.

Third Party Material

14.9 The Customer acknowledges and agrees that the Supplier does not grant the Customer a licence to use any Third Party Material.

No use of the Supplier’s marks

14.10 The Customer must not, and must ensure that its officers, employees, agents and subcontractors do not, use the trade marks or logos of the Supplier except with the prior written consent of the Supplier.

14.11 The Customer must not remove, or allow any person to remove, any trade marks, copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to any Hardware or Software.

Infringement claims

14.12 Subject to clause 14.13, the Supplier agrees to defend the Customer against any third party claim that the Software directly infringes such third party’s Intellectual Property Rights (Infringement Claim).

14.13 The Supplier shall have no liability or obligations under clause 14.12 for any Infringement Claim to the extent that it results from:

(a) modifications to the Software made by a party other than the Supplier or a person authorised by the Supplier;

(b) a superseded version of the Software, where relevant and where the Customer has had an opportunity to adopt an upgraded version;

(c) the combination, operation, or use of the Software with unauthorized third-party products, software, services, or materials;

(d) use of the Software in breach of this Agreement; or

(e) any Customer Material provided by the Customer.

14.14 In the event of an Infringement Claim or the Supplier’s reasonable belief that an Infringement Claim may arise, the Supplier, at its option and expense, may:

(a) procure the right for the Customer to continue using the Software in accordance with this Agreement; or

(b) make modifications to or replace the Software so that it becomes non-infringing without incurring a material reduction in performance or functionality; or

(c) if (a) or (b) are not commercially feasible, terminate the Customer’s right to use the infringing Software and refund the unused remainder of any prepaid Fees with respect to that Software.

14.15 Clauses 14.12 to 14.14 contain the Supplier’s entire liability and the Customer’s exclusive remedy for any Infringement Claims.

15. Customer Warranties

Customer Material warranty

15.1 The Customer warrants that use of the Customer Material by the Supplier as set out in this Agreement will not infringe the Intellectual Property Rights or other rights of any third party.

Accuracy and reliance warranties

15.2 The Customer represents and warrants, and it is a condition of this Agreement, that:

(a) all information provided by the Customer or on the Customer’s behalf to the Supplier is accurate and is not, whether by omission of information or otherwise, misleading;

(b) the Customer has not withheld from the Supplier any document, information or other fact material to the decision of the Supplier to enter into this Agreement; and

(c) the Customer is not relying on any representation made to the Customer by the Supplier or any Related Body Corporate of the Supplier (if any) before entry into this Agreement.

16. Term and Termination

Term and Renewal

16.1 This Agreement commences on the Commencement Date and continues for the Initial Term unless terminated earlier in accordance with this clause 16.

16.2 Where the Initial Term is equal or greater than 12 months:

(a) this Agreement will be automatically extended for consecutive periods of 12 months or other period as specified in the Official Order or Statement of Work (each a Rollover Period); and

(b) either party may terminate the Agreement at the conclusion of the Initial Term or any Rollover Period (as applicable) by giving at least 90 days’ written notice to the other party before the expiry of the Initial Term or then current Rollover Period.

16.3 Where the Initial Term is less than 12 months:

(a) this Agreement will continue to apply in accordance with the licence term or other period specified in the Official Order; and

(b) either party may terminate the Agreement at the conclusion of the Initial Term or any licence term by giving at least 30 days’ written notice to the other party.

16.4 Termination under clauses 16.2 or 16.3 shall not affect any licence granted under clause 14.5 to the extent necessary for the Customer to continue to enjoy the benefit of the Software and/or Services as provided up to the date of termination.

Termination for cause

16.5 A party may terminate this Agreement by written notice to the other party if that party:

(a) commits a material breach of this Agreement that is not remediable, or if remediable fails to remedy that breach within 30 days of receiving notice requiring it to do so; or

(b) suffers an Insolvency Event (subject to any legislation that may prevent or restrict the exercise of a right of termination or other right under this Agreement).

16.6 A party may terminate an Official Order or Statement of Work by written notice to the other party if that party commits a material breach of this Agreement with respect to that Official Order or Statement of Work and fails to remedy that breach within 30 days of receiving notice from the other party requiring it to do so.

After termination

16.7 On termination of this Agreement or any part of it, and in addition to any other rights the Supplier may have:

(a) the Supplier may issue an invoice for Hardware, Software and/or Services or any other work not previously invoiced;

(b) the Customer must pay all unpaid invoices whether or not due, including any invoice issued under clause 16.7(a);

(c) subject to clause 16.4 and excluding any perpetual licences that have not been revoked, any licenses and rights granted by the Supplier to the Customer pursuant to this Agreement immediately terminate and the Customer must immediately discontinue use of the Software and where applicable, return or destroy copies of the Software and Documentation;

(d) if termination is caused by the default of the Customer, the Customer is not entitled to a refund of any Fees paid in advance;

(e) the Supplier may delete or destroy the Customer Material and data of the Customer from its computer systems or otherwise in its possession or control provided it has first notified the Customer of its intention to do so and allowed the Customer a reasonable period of time (not exceeding 14 days) to extract such Customer Material and information. Where the Customer requires an additional period of time, the Supplier may charge the Customer at its then current rate of Fees for any retention or extraction of this Customer Material or data;

(f) accrued rights or remedies of a party are not affected;

(g) each party must deliver to the other party or destroy (as instructed by the other party) any of the party’s Confidential Information or other property in its care, custody or control and must not retain any copies of, or other reproductions or extracts of, the Confidential Information, except as it may retain in accordance with prudent business practices. Any retained material remains subject to the provisions of this Agreement without any time limit;

(h) for Hardware not ordered on the Customer’s behalf, the Supplier may:

(i) refund any fees paid for such Hardware; or

(ii) cancel any invoice issued for such Hardware;

(i) for Hardware ordered on the Customer’s behalf but not delivered, the Supplier may:

(i) cancel any Services associated with such Hardware and issue an invoice in respect of any Hardware Fees payable for such Hardware; and

(ii) deliver the Hardware to the Customer’s nominated delivery address;

(j) if the Supplier has agreed to accept payment of Hardware by instalments, and the Customer has not paid the applicable Hardware Fees in full by the date of termination, the Supplier may, at its option:

(i) at the Customer’s expense, retake possession of the Hardware and for this purpose may enter the Customer’s premises or any premises at which the Hardware is located; or

(ii) demand payment in full of all outstanding instalments of the Hardware Fees,

and the Customer must deliver such Hardware or pay such Hardware Fees within 7 days of being so notified by the Supplier;

(k) for Rented Hardware, the Supplier may at the Customer’s expense, retake possession of the Hardware and for this purpose may enter the Customer’s premises or any premises at which the Hardware is located.

16.8 Without limiting any other rights or remedies available to the Supplier, if the Agreement or any part of it is terminated prior to the expiry of the Initial Term due to Customer’s breach or the Customer suffering an Insolvency Event, the Customer will pay any outstanding amounts that would have been payable by the Customer under the Agreement for the POS Solution during the remainder of the Initial Term including all remaining rental payments for Rented Hardware where applicable (the Outstanding Amount). If an Outstanding Amount is payable, the Supplier shall send the Customer a tax invoice in respect of the Outstanding Amount and the Customer will pay that invoice within 30 days. The Customer agrees that: (i) payment of the Outstanding Amount is not intended to be and will not be construed as punitive and will compensate the Supplier for reasonable losses resulting from early termination of the Agreement; and (ii) the Outstanding Amount is no more than is necessary to compensate the Supplier for its genuine pre-estimate of loss that it will suffer as a result of the early termination of the Agreement.

16.9 On termination of the Agreement or any part of it, the parties will negotiate in good faith as to any transition out services required. The Supplier may charge additional fees to provide transition out services.

Survival

16.10 Termination or expiry of this Agreement or any part of it will not affect clauses 2.1(a), 2.16, 2.17, 14, 16 to 20 and 22 to 24 or any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination.

Non-solicitation

16.11 The Customer must not:

(a) during the Term of this Agreement and for a period of 6 months after the Term, solicit or entice away or attempt to solicit or entice away any one or more of the Supplier’s employees, consultants or contractors involved in the delivery of Supplies or Services under this Agreement; or

(b) engage or employ any person for a period of 6 months after the person ceases to be engaged or employed by the Supplier without the prior written consent of the Supplier.

16.12 Clause 16.11(b) does not apply in relation to a person who responds to a genuine published advertisement made by the Supplier.

16.13 The Customer acknowledges that the restraint in clause 16.11 is reasonable in its extent and goes no further than is reasonably necessary to protect the Supplier’s interests in maintaining employees, consultants and contractors.

17. Confidential Information

17.1 Each party agrees to keep confidential, and not to use or disclose, any Confidential Information of the other party provided to or obtained by that party before or after entry into this Agreement, other than as permitted by this Agreement.

17.2 The obligations of confidence in clause 17.1 do not apply to Confidential Information:

(a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:

(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and

(ii) before disclosing any information, gives a reasonable amount of written notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain that Confidential Information in confidence;

(b) that is in the public domain except as a result of a breach of this Agreement or other obligation of confidence; or

(c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.

17.3 Each party may use and disclose Confidential Information of the other party only:

(a) with the prior written consent of the other party; or

(b) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this Agreement.

17.4 If either party discloses Confidential Information under clause 17.3, that party must ensure that the information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the obligations under this Agreement.

17.5 Despite any other clause in this Agreement, the Supplier and its suppliers and contractors may use, disclose, and exploit any data which is de-identified or anonymised and is no longer deemed Personal Information under the Privacy Laws.

17.6 The Customer acknowledges that:

(a) the Supplier may suffer financial and other loss and damage if any unauthorised act occurs in relation to the Supplier’s Confidential Information or the Supplier’s Intellectual Property Rights, and that monetary damages would be an insufficient remedy; and

(b) in addition to any other remedy available at law or in equity, the Supplier is entitled to injunctive relief to prevent a breach of, and to compel specific performance of clauses 14 and 17.

18. Privacy

Clauses 18.1 to 18.15 apply where the Customer is located in any Jurisdiction other than the United Kingdom.

Use of Personal Information

18.1 The Customer must process, use and disclose all Personal Information:

(a) in compliance with the Privacy Laws (regardless of whether or not the Customer is otherwise obliged to comply with the Privacy Laws); and

(b) only for the purposes of performing its obligations under this Agreement.

18.2 The Customer acknowledges that the Supplier may process, collect, use and disclose Personal Information in accordance with the Supplier’s privacy policy available on its website.

Treatment of Personal Information

18.3 The Customer must obtain any necessary consents from, and make any necessary disclosures to, all relevant individuals for the purpose of disclosing their Personal Information to the Supplier under this Agreement and to enable the Supplier to store and use any Personal Information in the manner contemplated by this Agreement, including consent for the Supplier to transfer Personal Information outside the relevant Jurisdiction in connection with the Hardware, Software, and Services, and must otherwise comply in all respects with its obligations under the Privacy Act in respect of any Personal Information disclosed to the Supplier.

18.4 The Customer must give all assistance required by the Supplier from time to time in relation to compliance by the Supplier with the Privacy Act, or any investigation, request or enquiry (formal or otherwise) from the Privacy Commissioner regarding the Personal Information disclosed to the Supplier under this Agreement.

18.5 The Customer indemnifies the Supplier against all costs, expenses, losses, proceedings and claims of any nature suffered, brought or incurred directly or indirectly as a result of a breach by the Customer of its obligations under clause 18.

18.6 The Customer must:

(a) comply with all reasonable directions of the Supplier, in connection with the obligations of the parties under the Privacy Laws or in connection with policies (including privacy policies) developed by the Supplier from time to time to comply with the Privacy Laws;

(b) comply with any direction of the Supplier, or an individual to whom the Personal Information relates, about access to, or correction of, Personal Information;

(c) comply with any request or direction of the Supplier, arising directly from or in connection with the exercise of the functions of the Privacy Commissioner under the Privacy Laws, or otherwise including the issuing of any guideline about the handling of Personal Information; and

(d) not disclose Personal Information overseas without the prior written consent of the Supplier, and if that consent is given, the Customer must take reasonable steps to ensure the recipient complies with the Privacy Laws and is required to comply with the directions of the Supplier about Personal Information.

18.7 The Customer must immediately notify the Supplier if it becomes aware that a disclosure of Personal Information may be required by law.

The Customer’s duty

18.8 The Customer must take all necessary steps to ensure that:

(a) it uses and discloses Personal Information only as required by the Supplier's privacy policy and the Privacy Laws and

(b) solely for the purpose of performing its obligations under this Agreement;

(c) the Personal Information it uses and discloses is protected against loss and against unauthorised access, use, interference, modification, disclosure or other misuse; and

(d) only personnel authorised by the Supplier have access to the Personal Information.

18.9 The Customer must notify the Supplier immediately if it becomes aware of any breach of clause 18.

Data Breach

18.10 Clauses 18.12 to 18.15 apply if:

(a) there is any unauthorised access to, or unauthorised disclosure of, any Personal Information; or

(b) any Personal Information held by either party in connection with this Agreement is lost in circumstances where unauthorised access to, or unauthorised disclosure of, Personal Information is likely to occur (a Data Breach).

18.11 If the Customer becomes aware of any actual or suspected Data Breach, the Customer will, as soon as reasonably practicable notify the Supplier in writing of the Data Breach.

18.12 If the Supplier becomes aware of any actual or suspected Data Breach, the Supplier will, as soon as reasonably practicable:

(a) notify the Customer in writing of the Data Breach;

(b) undertake an investigation to determine the extent to which the Data Breach concerns any Personal Information and providing the results of the investigation to the Customer; and

(c) implement any reasonable mitigation strategies to reduce the impact of the Data Breach or the likelihood or impact of any future similar incident.

18.13 The Supplier will be entitled to charge reasonable fees for its services under clause 18.12 if the Data Breach is not caused as a direct result of the Supplier’s negligence.

18.14 The Supplier will review any Data Breach that involves the Supplier or the POS Solution and may provide input into the handling of the Data Breach.

18.15 In respect of any Data Breach concerning any Personal Information, and without limiting each party's obligations under the Privacy Legislation, including in respect of Divisions 2 and 3 of Part IIIC of the Privacy Act, the parties agree that the Customer shall have sole responsibility for:

(a) determining whether a Data Breach amounts to an Eligible Data Breach;

(b) carrying out any assessment of a suspected Eligible Data Breach required by the Privacy Act, and the Supplier will cooperate with the Customer’s reasonable requests in relation to any such assessment;

(c) preparing any statement of notification required by the Privacy Act, and the Supplier must cooperate with the Customer’s reasonable requests in relation to any such statement; and

(d) carrying out any notification required by the Privacy Act, and the Supplier must cooperate with the Customer’s reasonable requests in relation to any such notification.

UK Privacy

18.16 Clauses 18.18 to 18.35 apply where the Customer is located in the United Kingdom.

18.17 For the purposes of clauses 18.18 to 18.35, “Controller”, “Processor”, “Data Subject”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures” have the meanings given to them in the Privacy Laws.

Use of Personal Information

18.18 Both parties will comply with all applicable requirements of the Privacy Laws. These clauses 18.18 to 18.35 are in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Privacy Laws.

18.19 The parties acknowledge that for the purposes of the Privacy Laws, the Customer is the Controller and the Supplier is the Processor.

18.20 Without prejudice to the generality of clause 18.18, the Customer must:

(a) ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Information to the Supplier for the duration and purposes of this Agreement;

(b) process, use and disclose all Personal Information in compliance with the Privacy Laws (regardless of whether or not the Customer is otherwise obliged to comply with the Privacy Laws); and

(c) process, use and disclose all Personal Information only for the purposes of performing its obligations under this Agreement.

18.21 The Customer acknowledges that the Supplier may process, collect, use and disclose Personal Information in accordance with the Supplier’s privacy policy available on its website.

Treatment of Personal Information

18.22 The Customer must obtain any necessary consents from, and make any necessary disclosures to, all relevant individuals for the purpose of disclosing their Personal Information to the Supplier under this Agreement and to enable the Supplier to store and use any Personal Information in the manner contemplated by this Agreement, including consent for the Supplier to transfer Personal Information outside the relevant Jurisdiction in connection with the Hardware, Software, and Services, and must otherwise comply in all respects with its obligations under the Privacy Laws in respect of any Personal Information disclosed to the Supplier.

18.23 The Customer must give all assistance required by the Supplier from time to time in relation to compliance by the Supplier with the Privacy Laws, or any investigation, request or enquiry (formal or otherwise) from the Information Commissioner's Office regarding the Personal Information disclosed to the Supplier under this Agreement.

18.24 The Customer indemnifies the Supplier against all costs, expenses, losses, proceedings and claims of any nature suffered, brought or incurred directly or indirectly as a result of a breach by the Customer of its obligations under clauses 18.18 to 18.35.

18.25 The Customer must:

(b) comply with any direction of the Supplier, or an individual to whom the Personal Information relates, about access to, or correction of, Personal Information;

(c) comply with any request or direction of the Supplier, arising directly from or in connection with the exercise of the functions of the Information Commissioner's Office under the Privacy Laws, or otherwise including the issuing of any guideline about the handling of Personal Information; and

18.26 The Customer must immediately notify the Supplier if it becomes aware that a disclosure of Personal Information may be required by law.

Duties regarding Personal Information

18.27 Each party must take all necessary steps to ensure that:

(a) It processes Personal Information only on the documented written instructions of the other party, unless otherwise required by Privacy Laws;

(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Information and against accidental loss or destruction of, or damage to, Personal Information, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Information, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Information can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Personal Information are obliged to keep the Personal Information confidential

(d) not transfer any Personal Information outside of the UK or EEA unless the prior written consent of the other party has been obtained and the following conditions are fulfilled:

(i) the Customer or the Provider has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) the party complies with its obligations under the Privacy Laws by providing an adequate level of protection to any Personal Information that is transferred; and

(iv) the party complies with reasonable instructions notified to it in advance by the other party with respect to the processing of the Personal Information;

(e) assist the other party in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Privacy Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the other party without undue delay on becoming aware of a Personal Data Breach;

(g) at the written direction of the other party, delete or return Personal Information and copies thereof to the other party on termination of the Agreement unless required by the Privacy Laws to store the Personal Information;

(h) maintain complete and accurate records and information to demonstrate its compliance with clauses 18.18 to 18.35.

Approved Sub-Processors

18.28 The Customer authorises the Supplier to engage its Related Bodies Corporate and external service providers as sub-processors for the provision of support services under this Agreement. Some of these Related Bodies Corporate and external service providers may be located overseas, including Australia, NZ, the EU, the Philippines, India, Vietnam, Sri Lanka and the USA.

(a) The Supplier shall ensure that any sub-processor is contractually bound to data protection obligations which are no less onerous than those set out in this Agreement. The Supplier remains fully liable to the Customer for the acts and omissions of any sub-processor.

International Transfers

18.29 The Supplier shall not transfer, or permit access to, any Personal Information from outside the United Kingdom or European Economic Area unless it has ensured that such transfer complies with Chapter V of the UK GDPR or any equivalent obligation under applicable Privacy Laws. The Parties agree that:

(a) transfers to any country which is subject to a valid adequacy decision or adequacy regulations may occur without additional safeguards;

(b) transfers to Australia and the Philippines shall be subject to appropriate safeguards in the form of (i) the European Commission’s Standard Contractual Clauses (Commission Implementing Decision (EU) 2021/914, Module Two – Controller to Processor) (the SCCs), and (ii) the UK Information Commissioner’s International Data Transfer Addendum to the SCCs (the UK Addendum);

(c) the SCCs and UK Addendum are hereby incorporated by reference into this Agreement and shall apply automatically to any restricted transfer made under this Agreement. The Parties shall complete and execute such documents as may reasonably be required to give legal effect to such safeguards; and

(d) the Supplier shall provide the Customer with copies of the executed safeguards upon request.

Personal Data Breach

18.30 Clauses 18.31 to 18.35 apply if:

(a) there is any unauthorised access to, or unauthorised disclosure of, any Personal Information; or

18.31 If the Customer becomes aware of any actual or suspected Personal Data Breach, the Customer will, as soon as reasonably practicable, notify the Supplier in writing of the Personal Data Breach.

18.32 If the Supplier becomes aware of any actual or suspected Personal Data Breach, the Supplier will, as soon as reasonably practicable:

(a) notify the Customer in writing of the Personal Data Breach;

(b) undertake an investigation to determine the extent to which the Personal Data Breach concerns any Personal Information and providing the results of the investigation to the Customer; and

(c) implement any reasonable mitigation strategies to reduce the impact of the Personal Data Breach or the likelihood or impact of any future similar incident.

18.33 The Supplier will be entitled to charge reasonable fees for its services under clause 18.32 if the Personal Data Breach is not caused as a direct result of the Supplier’s negligence.

18.34 The Supplier will review any Data Breach that involves the Supplier or the POS Solution and may provide input into the handling of the Data Breach.

18.35 In respect of any Personal Data Breach concerning any Personal Information, and without limiting each party's obligations under the Privacy Laws, the parties agree that the Customer shall have sole responsibility for:

(a) determining whether a Personal Data Breach amounts to a notifiable data breach under the Privacy Laws;

(b) carrying out any assessment of a suspected notifiable data breach as required under the Privacy Laws, and the Supplier will cooperate with the Customer’s reasonable requests in relation to any such assessment;

(c) preparing any statement of notification required by the Privacy Laws, and the Supplier must cooperate with the Customer’s reasonable requests in relation to any such statement; and

(d) carrying out any notification required by the Privacy Laws, and the Supplier must cooperate with the Customer’s reasonable requests in relation to any such notification.

19. Limitation of Liability

Limitation

19.1 To the extent permitted by law, the total liability of the Supplier for Loss or Damage suffered by the Customer in connection with this Agreement is limited in the aggregate to:

(a) where the relevant Loss or Damage relates to a particular Official Order or Statement of Work, the total Software Fees paid in the 12-month period prior to the date the claim arose in respect of that Official Order or Statement of Work; and

(b) in all other circumstances, the total Software Fees paid in the 12-month period prior to the date the claim arose.

19.2 The limitation set out in clause 19.1 is an aggregate limit for all claims, whenever made.

19.3 Any claim the Customer makes against the Supplier for Loss or Damage in connection with this Agreement must (without limiting clause 18.24) be made within 2 years of the Customer becoming entitled to make the claim and any claim not made within 2 years is absolutely barred.

19.4 Nothing in this clause 19 limits any liability which cannot be limited at law, including but not limited to, liability for:

(a) death of personal injury caused by negligence; or

(b) fraud or fraudulent misrepresentation.

19.5 The output of the POS Solution (including any report generated from the POS Solution) does not and shall not constitute the Supplier’s advice, including financial, legal or other advice. The Customer must obtain all appropriate professional, financial, legal and other advice as applicable before relying on the output that it obtains from the POS Solution. The Customer must not represent (either expressly or implied) that the output of the POS Solution is or may constitute the Supplier’s advice.

19.6 The Supplier is not liable for any loss or damage due to fair wear and tear of any Hardware.

19.7 Each party’s liability is reduced to the extent that the other party or its Personnel caused or contributed to the loss or damage.

Consequential Loss

19.8 Subject to clauses 19.10 and 19.11 where applicable and excluding the Customer’s obligation to pay the Fees, each party is not liable for any Consequential Loss however caused (including by the negligence of the other party), suffered or incurred in connection with this Agreement.

19.9 Consequential Loss in clause 19.8 means:

(a) loss of bargain;

(b) loss of revenues;

(d) indirect loss;

(e) loss of profits;

(f) consequential loss;

(g) loss of actual or anticipated savings;

(h) lost opportunities, including opportunities to enter into arrangements with third parties;

(i) loss or damage in connection with claims against the Customer by third parties; and

(j) loss or corruption of data.

Australian and New Zealand Consumer Law

19.10 If the Australian Consumer Law applies to the supply of goods or services under this Agreement, the Supplier acknowledges and agrees that its goods and services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Customer will apply:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and

to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

19.11 If the Consumer Law or any other legislation states that there is a guarantee in relation to any good or service supplied by the Supplier in connection with this Agreement, and the Supplier’s liability for failing to comply with that guarantee cannot be excluded but may be limited, the Supplier’s liability for breach of any such guarantee will be limited at the Supplier’s option to:

(a) in the case of goods, one or more of the following: (1) the replacement of the goods; (2) the repair of the goods; (3) the payment of the cost of replacing the goods; or (4) the payment of the cost of having the goods repaired; and

(b) in the case of services: either (1) the supply of the services again; or (2) the payment of the costs of having the services supplied again.

Force Majeure

19.12 The Supplier will not be:

(a) in breach of this Agreement as a result of; or

(b) liable for,

any failure or delay in the performance of the Supplier’s obligations under this Agreement to the extent that the failure or delay is wholly or partially caused, directly, or indirectly, by a Force Majeure Event, any act or omission of the Customer, or where:

(c) the Supplier reasonably suspects, in its absolute discretion, that the Supplier may be ineligible to receive the POS Solution due to fraud, credit risk, or other associated risk; or

(d) the Customer fails to meet any average monthly transaction volume set out in an Official Order or Statement of Work in two or more quarters.

19.13 If a Force Majeure Event continues for 30 consecutive days, the Supplier may terminate the Agreement by written notice to the Customer.

20. Indemnity

Customer indemnity

20.1 The Customer is liable for, and indemnifies the Supplier from and against, all Loss or Damage incurred or suffered by the Supplier however caused in connection with:

(a) the Customer’s misuse of the Hardware, Supplier Materials, Deliverables, or Developed Materials;

(b) the Customer’s breach of any law or infringement of any third party rights;

(c) the Customer’s instructions to the Supplier where such instructions cause the Supplier to be in breach of any law or infringement of any third party rights;

(d) any act, omission, error, or negligence of an End User;

(e) any third party claims against the Supplier in connection with the Hardware, Software and/or Services including any unavailability of the Hardware, Software and/or Services;

(f) personal injury or death of any person (including without limitation any employee of the Customer) in connection with the Customer’s use of the Hardware, Software and/or Services;

(g) damage to property in connection with:

(i) the use of the Hardware, Software and/or Services; or

(ii) any Developed Materials where such materials have been adapted or modified by the Customer or anyone whom the Customer allowed to adapt or modify the Developed Materials, whether deliberately or otherwise; or

(h) any alleged or actual infringement of a third party’s Intellectual Property Rights or other right in connection with the Customer Material, or the Hardware, Software and/or Services.

Continuing obligation

20.2 Each indemnity in this Agreement is a continuing obligation notwithstanding:

(a) any settlement of account; or

(b) the occurrence of any other thing,

(c) and it is not necessary for the Supplier to incur expense or make payment before enforcing or making a claim under an indemnity.

21. Costs and taxes

Costs

21.1 Each party bears its own costs in relation to the preparation and signing of this Agreement.

Taxes

21.2 The Fees are exclusive of GST, VAT and any other value-added taxes applicable in the relevant Jurisdiction. The Customer must pay an amount equal to any chargeable GST, VAT or other value-added taxes applicable in the relevant Jurisdiction, in addition to the Fees in accordance with this clause or otherwise on delivery of an appropriate tax invoice.

Stamp duty

21.3 The Customer must pay all stamp duty (including penalties and interest) assessed or payable in connection with this Agreement.

Other taxes

21.4 The Customer must pay all taxes, duties, government charges and other taxes of a similar nature (including fines, penalties and interest) imposed or levied in the Jurisdiction connected with the performance of this Agreement, including without limitation VAT or GST as appropriate.

GST

21.5 Clauses 21.6 to 21.12 apply where Australian or New Zealand GST is applicable.

21.6 Any words capitalised in clause 21 and not already defined in clause 24.1 have the meaning given to those words in the GST Act.

21.7 Except under clause 20, the consideration for a Supply made under or in connection with this Agreement does not include GST.

21.8 If a Supply made under or in connection with this Agreement is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:

(a) the Recipient must pay the GST Act Supplier an amount equal to the total GST for the Supply (in addition to, and in the same manner as, the consideration otherwise payable under this Agreement for that Supply); and

(b) the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.

21.9 For clarity, the GST payable under clause 21.8 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the GST Act Supplier is liable, however caused.

21.10 If either party has the right under this Agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this Agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).

21.11 Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.

21.12 Where a Supply made under or in connection with this Agreement is a Progressive or Periodic Supply, clause 21.8 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.

22. Dispute resolution

22.1 This clause 22 applies to any dispute or difference which arises between the Customer and the Supplier in connection with this Agreement including in relation to pre-contract dealings in relation to this Agreement (Dispute).

22.2 Subject to clause 22.7, the Customer and the Supplier must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first complying with this clause 22.

22.3 If either the Customer or the Supplier considers that a Dispute has arisen, it may issue a notice to the other party, setting out reasonable particulars of the matter in Dispute.

22.4 If a Dispute notice is given, a senior executive of each party must meet and undertake good faith negotiations to resolve the Dispute.

22.5 If the Dispute has not been resolved within 5 Business Days after the Dispute notice is given, then within the following 10 Business Days the parties must seek to agree on the procedural rules and timetable for resolving the Dispute through mediation by a mediator agreed upon by the parties, or if the parties cannot agreed, a mediator appointed by the Australian Commercial Disputes Centre.

22.6 Each party will bear its own costs in respect of any mediation and pay one half of the mediator’s costs.

22.7 Notwithstanding anything in this clause 22, a party may at any time commence court proceedings in relation to a dispute or claim arising in connection with this Agreement where that party seeks urgent interlocutory relief.

23. General

23.1 This Agreement will be governed by and construed in accordance with the laws of, as applicable:

(a) England and Wales, where the Supplier is a British entity; or

(b) Melbourne, Victoria, Australia in all other cases.

23.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of England, or Queensland, Australia, as applicable and courts competent to hear appeals from those courts. Each party irrevocably waives any objection which it might at any time have to the courts of the relevant jurisdiction being nominated as the forum to decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement or as regards its formation (including non-contractual disputes and claims) and agrees not to claim that the courts of that jurisdiction are not a convenient or appropriate forum.

23.3 Any notice given under this Agreement will be in writing by email and will be deemed to have been delivered on transmission.

23.4 The Customer must not assign, in whole or in part, or novate the Customer’s rights and obligations under this Agreement without the prior written consent of the Supplier. A Change of Control of the Customer will be deemed to be an assignment.

23.5 The Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.

23.6 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

23.7 Time is not of the essence in the performance of obligations under this Agreement except in relation to performance of payment obligations.

23.8 Nothing in this Agreement is intended to, or will be deemed to, establish any partnership, joint venture, or agency relationship between the parties. Neither party is an agent of the other, and neither has any authority to act on behalf of or bind the other.

23.9 The Supplier may receive customer referrals from various channels, and from time to time may offer incentives for customer referrals.

23.10 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

23.11 This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all previous agreements about its subject matter.

23.12 Except as expressly set out in this Agreement, each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this Agreement.

23.13 The Supplier may subcontract the performance of all or any part of the Supplier’s obligations under this Agreement.

23.14 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.

23.15 The Supplier may amend the terms of this Master Agreement by giving the Customer at least 30 days written notice. If the change has a materially adverse effect on the Customer, the Customer may, within 60 days of receipt of the amendment notice and by providing no less than 30 days prior written notice, notify the Supplier that it does not accept the changes and that it wishes to terminate this Agreement. Where the Supplier does not withdraw the proposed changes to the Master Agreement during such notice period, the Agreement will terminate on expiry of such notice. For the avoidance of doubt, the Customer will not be entitled to terminate the Agreement if the Supplier withdraws the changes. Any other variation to this Agreement must be in writing and signed by the parties.

23.16 A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

23.17 The Customer must comply with all applicable laws in connection with receipt of the Hardware, Software and/or Services.

23.18 This Agreement may be executed in any number of counterparts and all counterparts together make one instrument.

23.19 The exchange of a fully executed version of this Agreement (in counterparts or otherwise) by electronic means using DocuSign or exchange of emails or otherwise shall be sufficient to bind the parties to the terms and conditions of this Agreement and no exchange of originals is necessary.

23.20 Without limiting any other remedies available to the Supplier, if the Customer fails to pay any amount payable under this Agreement, the Customer must pay Interest on that amount.

24. Definitions and interpretation

24.1 In this Agreement:

Additional Terms means any additional terms and conditions applicable to a particular POS Solution as provided to the Customer and incorporated into this Agreement.

Agreement means the Master Agreement including any Annexures, the Official Orders and/or Statements of Work, the credit application, direct debit form and personal guarantee as applicable, any applicable Additional Terms and any other documents incorporated by reference.

Annexure means an annexure of terms attached to and incorporated into the Master Agreement or provided to the Customer from time to time.

Business Day means a day that is not Saturday, Sunday, or public holiday in Melbourne, Victoria, Australia; Auckland, New Zealand; New York, United States; or London, England, as appropriate.

Change of Control means a change in the beneficial ownership of more than 50% of: (a) the issued share capital of a company; or (b) the legal power to direct or cause the direction of the general management of the company.

Commencement Date means the date as set out in the Official Order or Statement of Work, or if not specified, the date of execution of this Agreement, the Official Order or Statement of Work (as applicable) by the last party to execute it.

Confidential Information of a party means the terms and existence of this Agreement and any information:

(a) relating to the business and affairs of that party;

(b) relating to the customers, clients, employees, sub- contractors or other persons doing business with that party;

(d) which is designated as confidential by that party; or

(e) which the other party knows or ought to know, is confidential,

and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party.

Consequential Loss has the meaning given to that term by clause 19.9.

Consumer Law means, as applicable, the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth); or the New Zealand Consumer Law set out in the Fair Trading Act 1986 (NZ), Consumer Guarantees Act 1993 (NZ), and Part 3 of the Contract and Commercial Law Act 2017 (NZ).

Corporations Act means Corporations Act 2001 (Cth).

Customer means the customer nominated in an Official Order or Statement of Work.

Customer Data means any data provided by the Customer to the Supplier or used by the Customer in connection with the POS Solution.

Customer Material means the Customer Data and any material provided by or to which access is given by the Customer to the Supplier for the purposes of this Agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means.

Default Event means the occurrence of any one or more of the following events:

(a) default by the Customer in the payment of any amount which is payable to the Supplier by the Customer under this document or in the observance or performance of any material obligation to be observed or performed by the Customer under this Agreement;

(b) termination of this Agreement;

(c) the Customer is presumed insolvent under any applicable laws, is placed into liquidation, has an administrator or a receiver and manager or receiver appointed or a mortgagee takes possession of any substantial asset(s) of the Customer or if any proceedings are issued or an event occurs intended to lead to any of those consequences or if any other action relating to insolvent debtors occurs in relation to the Customer; or

(d) the Customer disputes the terms of any title retention or granting of a Security Interest provision applicable to any Hardware supplied to the Customer by the Supplier or refuses to return Hardware to the Supplier the return of which the Supplier has demanded under the terms of this Agreement.

Deliverables means a deliverable that the Supplier agrees to provide that is set out in an Official Order or Statement of Work.

Delivery has the meaning set out in clause 2.4.

Developed Materials means materials (of any nature) created by, or on behalf of, the Supplier in the course of providing the Services.

Documentation means any document provided by the Supplier to the Customer in connection with the Software.

Eligible Data Breach has the meaning given by Division 2 of Part IIIC of the Privacy Act.

End User means each end user customer of the Customer who uses the Subscription Software Services.

EU GDPR means the General Data Protection Regulation ((EU) 2016/679).

Fees means any Fees specified in an Official Order or Statement of Work executed by the parties and includes Hardware Fees.

Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes:

(a) a physical natural disaster including fire, flood, lightning or earthquake;

(b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;

(d) ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;

(e) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;

(f) law taking effect after the date of this Agreement;

(g) disruption or unavailability of the internet;

(h) strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors; and

(i) failure of a third party provider to provide hardware, software, products or services that the Supplier requires to comply with its obligations under this Agreement.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the Goods and Services Tax Act 1985 (NZ), as applicable.

GST Act Supplier means the entity making the Supply.

Hardware means any physical goods, equipment and related materials that the Customer requests, orders, rents or purchases from the Supplier from time to time in accordance with this Agreement and includes, as relevant, the Rented Hardware and the Purchased Hardware.

Hardware Fees means the fees for Hardware in an Official Order.

Implementation Services means services specified in a Statement of Work.

Initial Term means the initial term, initial period, minimum period, licence term or similar specified in the Official Order or Statement of Work.

Insolvency Event means any of the following events:

(a) in the United Kingdom:

(i) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (the “IA 1986”) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;

(ii) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(iii) the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;

(iv) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(v) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

(vi) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(vii) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;

(viii) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(ix) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (i) to (viii) (inclusive) above;

(x) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(xi) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or

(b) in all other cases:

(i) a controller (as defined in the Corporations Act) is appointed to the party, or over any of the property of the party;

(ii) the party becomes bankrupt;

(iii) a controlling trustee is appointed to the party, or over any of the property of the party;

(iv) the party or the party’s property becomes subject to a personal insolvency arrangement under part X Bankruptcy Act or a debt Agreement under part IX Bankruptcy Act;

(v) the party is unable to pay its debts when they become due and payable;

(vi) the party ceases to carry on business;

(vii) any event happens in the relevant Jurisdiction that is similar to any of the events or circumstances referred to in this definition; or

(viii) any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.

Intellectual Property Rights means all industrial and intellectual property rights, both in the relevant Jurisdiction and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

Interest means interest on any payment owing under this Agreement calculated:

(a) at 6%; and

(b) daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant interest.

Jurisdiction means, as applicable:

(a) New Zealand, where the Supplier is a NZ entity;

(b) the United Kingdom, where the Supplier is a British entity;

(d) Australia, in all other cases.

Loss or Damage includes any loss, damage, liability, penalty, fine, charge, expense, outgoing, payment, or cost of any nature or kind (including all legal and other professional costs on a full indemnity basis), however caused (including by negligence) or arising including those that are prospective or contingent and those the amount of which is not ascertained or ascertainable and includes loss of profits or expected profit and diminution in value.

Master Agreement means the standard terms and conditions set out in the main body of this Agreement.

Official Order means an order for the provision of Hardware, Software, Services and other services and products, in accordance with the Supplier’s standard format, as notified from time to time.

Payment Schedule means the schedule for payment of the Fees as set out in a Statement of Work.

Personal Information has the meaning given to the term ‘personal information’ or ‘personal data’ by the relevant Privacy Laws.

Personnel means a party’s employees, secondees, directors, officers, contractors, professional advisers, and agents.

Points means the points which may be earned and redeemed by End Users in accordance with the Agreement between the End User and the Customer.

POS Solution means the point of sale solution that the Supplier agrees to provide to the Customer as described in the Official Order or Statement of Work comprising a combination of Software, Hardware and Services.

PPSA means the Personal Property Securities Act 2009 (Cth).

Privacy Act means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time.

Privacy Laws means, as applicable:

(a) in the United Kingdom:

(i) all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and EU GDPR as amended; and

(ii) all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Information (including, without limitation, the privacy of electronic communications); and

(b) in all other cases:

(i) the Privacy Act;

(ii) the Australian Privacy Principles (or APPs) contained in schedule 1 Privacy Act; and

(iii) all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.

Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements of section 156–5 GST Act.

Purchased Hardware has the meaning given to that term in clause 2.18.

Related Body Corporate means, as applicable:

(a) the meaning given to that term by section 9 of the Corporations Act; or

(b) the meaning given to that term by section 2(3) of the New Zealand Companies Act 1993; or

(c) the ultimate holding company and each direct and indirect subsidiary of the ultimate holding company of the party, wherever registered or incorporated in the world.

Rented Hardware has the meaning given to that term in clause 2.21.

Rollover Period has the meaning given to that term in clause 16.2 or as otherwise specified in the Official Order or Statement of Work.

Services means the services to be provided by the Supplier as specified in an Official Order or a Statement of Work, and includes as applicable hosting, integration, training, support and maintenance services, the Implementation Services and the Support Services.

Site means the location as identified in the relevant Official Order or Statement of Work (as applicable) where the Customer is authorised to use the Software or receive the Services.

Software means the software identified in an Official Order or Statement of Work (including all modules of the software program(s)), and any modified, updated, upgraded, or enhanced versions of such program(s) that the Supplier may provide and license to the Customer under this Agreement.

Software Defect means a material defect in any Software that causes the Software not to perform materially in accordance with the specifications for that Software.

Source Code means the human-readable version of a software program that can be compiled into executable code.

Software Fees means the fees for Software in an Official Order.

Statement of Work means a statement of the work for the provision of Implementation Services by the Supplier.

Supplier means the Supplier entity defined in the relevant Official Order or Statement of Work.

Supplier Material means any material provided by or to which access is given by the Supplier to the Customer for the purposes of this document including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means and includes the Software.

Support Services means the Supplier’s standard support and maintenance services for the Software (including the provision of Updates and Upgrades) as amended from time to time and which may be acquired by the Customer pursuant to this Agreement.

System means the server, operating system, and database on which the Software is licensed to be used as identified in a relevant Official Order.

Term means the Initial Term and any Rollover Period.

Third Party Material means any material that is owned by a third party including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.

Third Party Product means a software program owned by a third party (Third Party Supplier) and which is licensed by the Supplier to the Customer under this Agreement.

UK GDPR has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018 (UK).

Update means a subsequent release, correction or revision of the Software which the Supplier makes available as part of the Support Services.

Upgrade means a subsequent release of the Software containing improvements or additional functionality, which the Supplier makes available as part of the Support Services.

VAT means value added tax chargeable under the Value Added Tax Act 1994 (UK) and any similar replacement or additional tax.

24.2 In this Agreement:

(a) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;

(b) no rule of construction applies in the interpretation of this Agreement to the disadvantage of the party preparing this Agreement on the basis that it put forward this Agreement or any part of it;

(c) a reference to a party is a reference to the Supplier or the Customer, and a reference to the parties is a reference to both the Supplier and the Customer; and

(d) a reference to applicable law is to any relevant law (including any subordinate or delegated legislation or statutory instrument of any kind) of a relevant Jurisdiction, and also to any relevant judgment, order, policy, guideline, official directive, code of conduct, authorisation or request (even if it does not have the force of law) of any government agency or regulatory body, such as a stock exchange, in a relevant Jurisdiction.

Annexure A – Implementation Services

1. Application

1.1 This Annexure applies to the supply of Implementation Services, where specified in an Official Order or Statement of Work.

2. Implementation Plan

2.1 The Supplier will provide the Customer with an implementation plan for the implementation of the POS Solution at the Site(s) (Implementation Plan) which includes as applicable:

(a) date(s) for pre-install inspection(s) of the Site(s) where the Supplier considers such inspection(s) to be necessary;

(b) Service Site preparation requirements that the Customer must comply with;

(d) dates by which the Supplier will aim to deliver, install and configure the Software at the Site(s) (where the POS Solution is an on-premise solution);

(e) dates by which the Supplier will aim to configure the Software to be accessed from the Hardware or other hardware at the Site(s) as specified in the Statement of Work (where applicable, including where the POS Solution is a cloud-based solution);

(f) dates by which the Supplier will aim to integrate the Hardware, other hardware, Software and Customer software, to the extent specified in the Statement of Work;

(g) a date by which the Supplier will aim for the POS Solution to be ready for use in a live environment; and

(h) any other relevant particulars of the implementation.

2.2 Each party must use reasonable endeavours to comply with the Implementation Plan.

2.3 There will be an extension of time for completion of any one or more of the stages in the Implementation Plan if one of more of the following events occur:

(a) the Supplier agrees to a change to the Implementation Plan or any part of the POS Solution;

(b) a shipping or third party provider delay occurs, or another Force Majeure Event occurs, that prevents the Supplier from completing one or more stages of the Implementation Plan by any date specified in the Implementation Plan;

(c) one or more delays are caused in whole or in part by any of the Customer’s acts or omissions, of those of the Customer’s Personnel;

(d) an extension is required because either party was unable to complete any part of the Implementation Plan despite using its reasonable endeavours to do so.

2.4 For any extension of time the subject of section 6, the Supplier:

(a) may amend the Implementation Plan; and

(b) will provide the Customer with a copy of the amended Implementation Plan.

2.5 The Customer must:

(a) ensure that all Hardware and any other hardware is installed and kept at the Site(s), under suitable conditions, as specified in any applicable Documentation, and must follow any operating instructions as the Supplier may give from time to time;

(b) at all reasonable times permit full and free access to the Site(s) and to the POS Solution to the Supplier and Supplier Personnel and provide the Supplier and Supplier Personnel with an adequate and safe working space, and any telecommunications facilities as are reasonably required to enable the Supplier to perform Services while at the Site(s);

(d) be present at its premises or the Site at the required times to enable the Supplier to perform its obligations at the times reasonably required by the Supplier; and

(e) ensure that the Supplier is provided with the contact details of Customer Personnel that can be contacted at any time and who are authorised to takeall steps necessary to facilitate the Supplier supplying the Services (for example, to authorise corrective action by the Supplier in the event of a critical incident).

3. Site Preparation

3.1 The Customer must prepare the Site(s) in accordance with any requirements set out in the Implementation Plan or that the Supplier otherwise notifies to the Customer. The Customer will also be responsible for ensuring that all Customer software and other hardware is installed, set up, configured, fit for purpose, in working order and available to the Supplier, and that all internet connections and network connections are complete and operational, no later than the relevant date(s) specified in the Implementation Plan.

3.2 The Customer must provide all cabling, cabinet works (holes through benchtops, access holes for cables, installation of brackets etc.) and carry out all other works and provide all other equipment needed to prepare the Site(s) for the installation of the Hardware, including any equipment needed to connect and interface the Hardware with any other hardware at the Site(s).

3.3 If the Customer does not comply with section 9:

(a) the Supplier may, but is not obliged to, carry out the relevant works and supply the relevant cabling and other equipment for an additional fee specified by the Supplier;

(b) the Customer must pay such additional fee at the time(s) specified by the Supplier;

(c) the Supplier is not liable for any loss or damage incurred as a result of our provision of such works or supply of such cabling or such other equipment;

(d) the Customer warrants that it is authorised to carry out all such works (including, where applicable, by any landlord where the Customer is a tenant of the Site(s)); and

(e) the Customer must indemnify the Supplier from and hold it harmless from and against all and any loss and/or damage that it incurs as a result of carrying out such works.

Annexure B – Hosting Services Performance Standards

Definitions

Available	means access to the Hosting Services can be obtained from any computer terminal or workstation located at a Customer site.
Actual Service Hours	means the number of hours that the Hosting Services are Available.
Down Time	means any period of time where the Hosting Services are not Available.
Excusable Failure	has the meaning given by section 2 below.
Excusable Down Time	means any Down Time due to an Excusable Failure or any Scheduled Down Time.
Planned Service Hours	means 24 hours per day, excluding regular maintenance under clause 7 of the Agreement.
Scheduled Down Time	means a period of Down Time that is agreed between the Supplier and the Customer to be Scheduled Down Time.
Service Availability	means the ratio of Actual Service Hours, adjusted for Excusable Down Time, to Planned Service Hours over a rolling six month period, calculated as follows: Service Availability % = (Actual Service Hours + Excusable Down Time) * 100Planned Service Hours

1. Introduction

1.1 These Performance Standards describe the performance standards the Supplier will endeavour to meet or exceed in relation to the provision of the Hosting Services to the Customer.

2. Excusable Failure

2.1 The Supplier will not be responsible for any failure to meet the performance standards to the extent such failure is caused by:

(a) problems resulting from components (hardware/software/network) for which the Customer is responsible;

(b) any failure caused by the Customer or the Customer’s personnel;

(d) any failure attributable to data centre provision;

(e) changes made by the Customer to the operating environment used to deliver Hosting Services which are not approved by the Supplier; or

(f) circumstances that constitute a Force Majeure Event,

2.2 except to the extent that the corresponding failure is within the control of the Supplier.

2.3 Notwithstanding the foregoing, to the extent that any third party product or service supplied (or otherwise made available) by the Supplier has a defect that impacts the Hosting Services, the Supplier agrees to contact the relevant third party supplier and use best endeavours to procure the rectification of that defect as quickly as possible. In the event that the relevant third party supplier does not rectify the defect in a timely manner, the Supplier agrees to use best endeavours to procure the benefit of alternative products or services offering materially the same functionality as the original product or service (had it functioned correctly).

3. Performance Standards

3.1 Service Hours:

(a) The Hosting Services will be provided during Planned Service Hours. Access may be available outside of these timeframes, but not as part of the performance standards; and

(b) Prior notice for Scheduled Down Time will be given in accordance with clause 7 of the Agreement.

4. Service Availability

4.1 The Service is unavailable when:

(a) First, the Supplier’s records show that it is not possible for the Customer to access the Hosting Services;

(b) Secondly:

(i) the Customer has reported to the Supplier in accordance with this agreement; or

(ii) the Supplier has notified the Customer,

(d) In the case of manifest error in the Supplier’s records, the Customer’s records will be used;

(e) The Hosting Services cease to be unavailable at the time when the Supplier notifies the Customer that the Hosting Services are available. This notification could be in the form of a telephone call, voice message, fax, email, text message, or another method agreed between the parties;

(f) The Hosting Services will not be unavailable in accordance with this clause if the Supplier determines (acting reasonably) that the delay or unavailability of the Hosting Services was caused by an Excusable Failure;

(g) The Service Availability targets for the Hosting Services for each month are set out in Table 1 below. Availability is measured as the average availability across the Hosting Services accessed by the Customer in a calendar month; and

(h) The service unavailable severity level definition is set out in Table 2 below.

Table 1: Service Availability Targets

Availability measurement	Availability Target
Hosting Services Availability	99.5%

Table 2: Service Unavailable Severity Level Definition

A service unavailable event is defined as severity level 2 as set out below.

Level	Description	Definition	Response Time	Target Resolution	Update Frequency
2	SERIOUS CONDITION REQUIRING PROMPT ATTENTION	Call requires quick resolution. A business-critical application is operable but not fully functional. A workaround has been provided, but condition and workaround severely impact guest service or financial results.	Within 15 minutes	Within 48 hours or as soon as possible*	Daily

* If the cause of the service unavailable event is determined to be an Excusable Failure as defined in section 2 above, resolution timescales are beyond the Supplier’s control and cannot be quantified.

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