Brand Agreement - Terms and Conditions (AU/FS)

Statement of Work
Terms and Conditions (AU)

Last updated 07 October, 2024

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These Hapana Customer General Terms and Conditions comprising clauses 1 – 16 and the Schedules (“Terms and Conditions”) (as may be updated by Hapana from time to time with the written agreement of the Customer), governs your access to and use of the Online Subscription Based Services (as defined below). This Agreement is by and between Hapana and the Customer (each as defined below). The Customer agrees to be legally bound by this Agreement, including these Terms and Conditions. If you are using the Online Subscription Based Services for an entity or purporting to enter into this Agreement for an entity, such as the company you work for, you represent and warrant that you have legal authority to bind that entity to this Agreement.

This agreement witnesses:

Operative provisions

1. Definitions and interpretation

1.1. Definitions

In this Agreement (including the above recitals), the following terms have the defined meanings, unless otherwise indicated:

“Additional Services” means the services set out or specified in the Agreement Details as “Additional Services” or “Ancillary Services Fees” and the services contemplated by clause 6.3 of this Agreement;

“Affiliate” means, in respect of a company or other business entity, any company or other business entity Controlled by, Controlling, or under the common Control of a third party that also Controls that company or other business entity from time to time;

“Aggregate Data” means anonymized or aggregated data which is generated, created or otherwise derived through the use of the Services and which does not include any Personal Information.

“Agreement” means these Terms and Conditions together with any Statement of Work and the Payment Services Terms (as applicable).

“Agreement Details” means all data in the SOW detailed in the “Agreement Details”, “Subscription Services & Fees”, “Payment Services & Fee” or “Variable Service & Fees” sections;

“Brand” means all of the Customer’s (or a Customer Affiliate’s) brand(s), logo(s) or trade mark(s) (or other similar designation(s)) specified in the Agreement Details and subject to any additions in accordance with clause 7.3;

“Commencement Date” means the date specified in the Agreement Details;

“Confidential Information” means, in relation to a Party, the confidential information of such Party and includes information relating to the business affairs of such Party and all information of a confidential nature provided by such Party to the other Party or otherwise obtained by the other Party, which:

(a) is not readily available in the public domain; or

(b) if part of the public domain, became part of the public domain as the result of an unauthorised disclosure or a breach of the Agreement;

“Consequential Loss” means:

(a) any loss or damage which does not arise naturally or in the usual course of business from the breach;

(b) any lost revenue, lost profits, lost business, lost goodwill, lost anticipated savings; and

whether arising from or in connection with any breach of contract, negligence or any other cause of action arising under or in connection with this Agreement;

“Content” means software (including machine images), data, text, audio, video or images.

“Control” means the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of fifty per cent (50%) or more of the voting interest, by contract, or otherwise (and Controlled and Controlling are to be construed accordingly);

“Corporations Act” means the Corporations Act 2001 (Cth);

“Currency” means the system of currency set out in the Agreement Details;

“Customer Affiliate” means an Affiliate of the Customer;

“Customer Data” means:

(a) any data (that is not Aggregate Data) associated with the Customer’s or a Location’s products, staff, contractors and both active and inactive customers that is provided by the Customer, a Customer Affiliate or a Location to Hapana pursuant to this Agreement or any Location Agreement; and

(b) any other content, data, information or material that is posted, uploaded, submitted, inputted, played or otherwise distributed by a Customer, a Customer Affiliate or a Location using the Services pursuant to this Agreement or any Location Agreement (including any Location Data (as defined in the Location Agreement), content, data, information or materials that is posted, uploaded, submitted, inputted, played or otherwise distributed using the Online Subscription Based Service or the Online Delivery Platform);

“Daily Active User” means an End User of the Customer and/or Location who is able to access premium content that is otherwise hidden without this access being provided on their account. Content that is available to all End Users regardless of a purchase on account of access to premium content (or complimentary access being granted where the tag in the content suite is “All”) does not constitute access to premium content for purposes of calculating the number of Daily Active Users;

“Digital Component” means the component of the Online Subscription Based Services that provides the Customer with online streaming functionality (including the provision of online classes and content on demand services);

“Documentation” means the user manuals, installation instructions, reference material and other relevant publication and aids and any updates, replacements, revisions and additions (if any) provided or made available by Hapana or its Affiliates to the Customer or any Location from time to time in a hard copy, electronic or online format. Documentation excludes any document that is training or marketing material.

“End User” means an individual that is authorised by the Customer or a Location to use the Services in an individual capacity;

“Error” means a reproducible failure of the Online Subscription Based Services and Online Delivery Platform to substantially conform to the prevailing functional specifications of the Online Subscription Based Services and Online Delivery Platform, respectively, as detailed in this Agreement or any Schedule to this Agreement;

“Fees” means all fees, charges and amounts due and payable by the Customer or any Location to Hapana under this Agreement or any Location Agreement, including the Subscription Fee and the Services Fee;

“Force Majeure” means any event, occurrence or circumstance that is not within the control of a Party and which, by the exercise of reasonable care, that Party is not able to prevent, overcome or provide against.

“Further Term/s” means the further term/s (if any) specified in the Agreement Details;

“GST” means the tax imposed or sought to be imposed by the GST Act;

“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Hapana Content” means Content that Hapana or any of its Affiliates make available to the Customer or any Location in connection with the Services, including the Documentation and other related materials. The Hapana Content excludes the Services

“Initial Term” means the period specified in the Agreement Details;

“Insolvent” means in the case of a corporation, that corporation becoming:

(a) an “externally-administered body corporate” as defined in the Corporations Act;

(b) unable to pay its debts as and when they fall due;

(d) subject to a scheme of arrangement or official management pursuant to the Corporations Act;

“Intellectual Property Rights” means patents, trade marks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, copyright (including rights in computer software) and topography rights; inventions, know-how, intangibles, secret formulae and processes and other proprietary knowledge and information; internet domain names; rights protecting goodwill and reputation; database rights; and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world and all rights under licences and consents in respect of any of the rights and forms of protection mentioned in this definition;

“International Taxation Rules” means the applicable taxation rules, regulations or legislation which apply to this Agreement as specified in the Agreement Details;

“Location(s)” means any entity or location associated with an entity that is operating under the Brand which is either:

(a) owned or operated by the Customer or a Customer Affiliate;

(b) owned or operated by a third party that is party to a franchise, brand licence or similar agreement, arrangement or understanding with the Customer;

(c) any entity or location authorised to access and use the Services, subject to the terms of a Location Agreement with the Customer or a Customer Affiliate; or

(d) and any other entity or location agreed to in writing between Hapana and the Customer from time to time;

“Location Agreement” means the agreement between Hapana and any Location with respect to such Location’s use of the Online Delivery Platform and the Services, the terms of which are specified in the Agreement Details; and which must be entered into by each Location prior to the Location being able to use the Services as contemplated by this Agreement;

“Statement of Work” or “SOW” is a signed written statement of work, order form, purchase order, or other document entered into hereunder between the parties, setting forth, among other things, the specific services and Deliverables to be provided by HPNA and the fees to be paid by Customer in respect thereof;

“Migration Period” means the period (if any) specified in the Agreement Details;, during which all Locations that were in operation prior to the Commencement Date are required to be migrated to the Online Subscription Based Services;

“Hapana Intellectual Property” means:

(a) any Intellectual Property Rights owned or licensed by Hapana, including any Intellectual Property Rights in the Services and any of Hapana’s brand, logos or trademarks, (whether registered or unregistered);

(b) any information, knowledge and know how related to the provision of the Online Subscription Based Services to the Customer or a Customer Affiliate; and

(c) any updates, upgrades and modifications made to the Intellectual Property Rights in subclauses (a) and (b) above (including any Updates or Upgrades) from time to time;

“Online Delivery Platform” means the cloud based mechanism by which the Customer will access the content of the Online Subscription Based Services as specified in the Agreement Details

“Online Subscription Based Services” means the services that Hapana allows the Customer and/or Location to access via the Online Delivery Platform for a Subscription Fee in accordance with the terms of this Agreement, including where specified in the Agreement Details, the Payment Services;

“Payment Services” means the payment processing and related services specified in the Agreement Details; and described in the Payment Services Terms;

“Payment Services Terms” means the terms and conditions which apply to the Payment Services specified in the Payment Services Terms;

“Personal Information” has the meaning given to such term in the Privacy Act 1988 (Cth) and any applicable analogous legislation in any jurisdiction from time to time;

“Premises” means the physical location owned or leased by the Customer and/or a Location and/or from which the Customer or any Location provides services under the Brand;

“Privacy Policy” means the Hapana privacy policy available at https://www.hapana.com/privacy-policy/, as amended from time to time;

“Prohibited Content” means any content that:

(a) infringes any Intellectual Property Right or other right (including any right of publicity) of any person or entity;

(b) is unlawful (including in breach of the Spam Act 2003 (Cth)), threatening, abusive, harassing, hateful, discriminatory, defamatory, libelous, misleading, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane, promotes violence, or is otherwise inappropriate as determined by Hapana in its sole discretion;

(c) contains any virus, worm, malicious code, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Hapana or any person or entity;

(d) encourages illegal activity; or

(e) falsely suggests or implies sponsorship or endorsement by Hapana;

“Rebates” means the rebates or discounts provided by Hapana to the Customer specified in the Agreement Details (if any), which are further described in Schedule 2, and are subject to, the Rebate Terms.

“Rebate Terms” means the terms and conditions which apply to Rebates set out in the Agreement Details and Schedule 2;

“Right of First Refusal” means in the event the Customer expands its operations beyond the Territory covered by this Agreement (specified in the Agreement Details), Hapana has the right of First Refusal in providing the Customer with the Online Subscription Based Services per the same terms of this Agreement (as updated from time to time) in the new territory/territories;

“Service Fee” means, collectively, all of the fees specified in the Agreement Details;

“Services” means any and all services provided to the Customer and/or any Location pursuant to this Agreement, including the Hapana’s Online Subscription Based Services and Online Delivery Platform and any other services or deliverables provided to the Customer and/or any Location pursuant to this Agreement;

“SOW” or “Statement of Work” means the signed written statement of work, order form, purchase order, or other document entered into hereunder between the Parties, which sets forth, among other things, the specific Services and Deliverables to be provided by HPNA and the Fees to be paid by Customer in respect thereof, including the Agreement Details, background and any schedules attached thereto, and which incorporates by reference these Terms and Conditions;

“Subscription” means the arrangement whereby the Customer and/or Location is provided access by Hapana to the Online Subscription Based Services via the Online Delivery Platform pursuant to clause 2.1;

“Subscription Fee” means, collectively, all of the fees specified in the Agreement Details;

“Take Down Policy” means Hapana’s Take Down Policy, as amended from time to time, which governs the removal of content from the Online Subscription Based Services and/or the Online Delivery Platform;

“Term” means the Initial Term and any Further Term, subject to any termination of this Agreement in accordance with the terms and conditions of this Agreement;

“Territory” means the geographic territory specified in the Agreement Details;

“Updates” has the meaning given in clause 6.1(a); and

“Upgrades” has the meaning given in clause 6.1(b).

"Customer" means the customer identified in the Agreement Details.

"Hapana" or ‘HPNA’ means the Hapana entity identified in the Agreement Details.

"Parties" means Hapana and the Customer.

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1.2. Interpretation

In this Agreement unless the context otherwise indicates:

(a) references to any party shall include the executors, administrators, successors of that party;

(b) references to a clause, or Schedule, or other annexure shall be construed as references to a clause of, or Schedule, or annexure to this Agreement, and references to this Agreement shall include its Schedules and any annexures;

(c) references to (or to any specified provision of) this Agreement or another Agreement, or document, shall be construed as references to (that provision of) this Agreement, or that other Agreement, or document as amended or substituted with the Agreement of the relevant parties and in force at any relevant time;

(d) references to any statute, ordinance or other law shall include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;

(e) words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;

(f) where any word or phrase is given a defined meaning in this Agreement, any other part of speech or other grammatical form in respect of such word or phrase shall have the corresponding meaning;

(g) headings included in this Agreement are for convenience only and shall be disregarded in the construction of this Agreement;

(h) any phrase introduced by the words’ including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression must be construed as illustrative only and must not be construed as limiting the generality of any preceding words; and

(i) neither this Agreement nor any part of it is to be construed against a party on the basis that the party, or its lawyers, were responsible for its drafting.

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2. Subscription Access to Services

2.1. Provision of Access Generally

(a) Hapana hereby provides the Customer with a non-transferable, non-exclusive and non-assignable ability to access and use the Online Subscription Based Services and Online Delivery Platform, subject to the terms and conditions of this Agreement. In the event of a transfer or sale of any Assets, the provisions of this Agreement shall continue to apply unless the purchasing party agrees to assume all obligations and provisions under this Agreement and executes a new Agreement with Hapana. Until such time that a new Agreement is duly executed, this existing Agreement shall remain in full force and effect, governing the relationship between the parties.

(b) The Customer may only access and use the Online Subscription Based Services or Online Delivery Platform in the Territory (and, with respect to any Location, in such parts of the Territory specified in the relevant Location Agreement) to deliver services and content in accordance with this Agreement and any relevant Location Agreement. The Customer and each Location may not use the Online Subscription Based Services or Online Delivery Platform for any other purpose.

(c) The Customer acknowledges and agrees that in order for any Location to use the Services, such Location must enter into the Location Agreement prior to accessing and using the Services and must comply with the Location Agreement and the relevant terms and conditions of this Agreement. Notwithstanding any other provision in this Agreement, Hapana is not required to provide use of the Services to any Location that does not enter into, or is in breach of, a Location Agreement.

(d) In Hapana providing the Customer with access to the Online Subscription Based Services, the Customer acknowledges that neither the Customer and/or any Location are authorised to access, reproduce or use the source code associated with the Online Subscription Based Services.

(e) The Customer also acknowledges nothing in this Agreement or any Location Agreement constitutes a licencing arrangement, in that Customer and/or any Location has no right to reproduce, access, distribute, modify or perform any other acts that are the right of the owner of the underlying source code utilised in the delivery of the Online Subscription Based Services and Online Delivery Platform to the Customer and/or Location.

(f) Hapana will deliver the Online Subscription Based Services to the Customer and/or any Location via the Online Delivery Platform and, as such, the Customer acknowledges it and/or any Location will not receive a physical copy of the Online Subscription Based Services on which the Services have been developed, displayed or accessed. For the purposes of clarity, the Customer acknowledges that in the Customer and/or any Location accessing the Online Subscription Based Services or Online Delivery Platform, the Customer and/or any Location will not own or have any rights to any aspect of the Online Subscription Based Services or Online Delivery Platform other than the ability to access and use the Online Subscription Based Services and Online Delivery Platform in accordance with this Agreement.

2.2. Payment Services

(a) Where the Online Subscription Based Services include Payment Services (specified in the Agreement Details), the Payment Services Terms will apply to the provision of the Payment Services.

(b) In the event of any conflict or inconsistency between the terms and conditions of the Payment Services Terms and the terms and conditions of the remainder of this Agreement, the terms and conditions of this Agreement prevail to the extent of such conflict or inconsistency and the terms and conditions of the Payment Services Terms are to be read down, or if necessary severed, to the extent necessary to resolve the conflict or inconsistency, except to the extent that such conflict or inconsistency concerns the Payment Services, in which case, the terms and conditions of the Payment Services Terms prevail to the extent of such conflict or inconsistency and the terms and conditions of the remainder of this Agreement are to be read down, or if necessary severed, to the extent necessary to resolve the conflict or inconsistency.

2.3. Usage Conditions

(a) The access granted by Hapana to the Customer and/or any Location under this Agreement or any Location Agreement must not be assigned, novated or provided by the Customer or any Location to another party without the prior written consent of Hapana.

(b) The Customer and/or any Location must not create or permit to exist a security interest or encumbrance over the Services (or any part or component of the Services).

(c) The Customer must not disclose, make available, display, demonstrate or otherwise provide the Services (or any part or component of the Services) to any third party (other than Locations or End Users).

(d) The Customer must use its best endeavors to ensure that any Location does not disclose, make available, display, demonstrate or otherwise provide the Services (or any part or component of the Services) to any third party (other than any End User).

(e) The Customer must comply (and must ensure that each Location complies) with the Take Down Policy. The Customer acknowledges that it has been provided with a copy of the Take Down Policy and may view a copy of the Take Down Policy on the website of Hapana at any time.

2.4. Suspension

(a) Hapana may suspend the Customer’s or any Location’s use of, license to and access to the Online Subscription Based Services or the Online Delivery Platform if:

(1) Hapana believes, acting reasonably, that the Customer or the relevant Location has breached any of the provisions of this Agreement or any Location Agreement or otherwise failed to perform any of its obligations under this Agreement or any Location Agreement, including any payment obligations;

(2) the Customer’s or the relevant Location’s use of the Online Subscription Based Services or the Online Delivery Platform:

(A) is fraudulent or may cause Hapana to be subject to liability; or

(B) breaches any applicable law; or

(3) the Customer or the relevant Location becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.

(b) If Hapana suspends the Customer’s or a Location’s use of, license to or access to, any Online Subscription Based Services or the Online Delivery Platform pursuant to clause 2.4(a), the Customer or such Location:

(1) will not be entitled to use or access the Online Subscription Based Services or the Online Delivery Platform during the suspension; and

(2) will not be entitled to any relief or remedy as a result of the suspension.

2.5. Exclusivity

(a) The Customer agrees that Hapana will be the exclusive supplier of the Online Subscription Based Services and Online Delivery Platform to the Customer and any Location, and the Customer and/or any Location must not itself perform, or separately or independently source, or engage a third party to supply goods or services that are the same as or substantially similar to the Online Subscription Based Services and Online Delivery Platform, including the provision of business management and operations services, during the Term.

(b) The Customer will notify all Locations that every Location must use the Online Subscription Based Services and Online Delivery Platform. If, for any reason, any Location does not the Online Subscription Based Service or Online Delivery Platform, the Customer must use commercially reasonable efforts (which may include sending a letter requiring that the Location use the Online Subscription Based Service or Online Delivery Platform or notifying the Location that continue refusal to use the Online Subscription Based Service or Online Delivery Platform may result in further legal action).

3. Term

(a) This Agreement will become effective on the execution of this Agreement by both Parties and will continue in force for the Term, subject to clause 3(c).

(b) Hapana will begin providing the Services on the Commencement Date.

(c) After the Initial Term or any Further Term, this Agreement will renew for additional Further Term/s, by the Customer giving written notice to Hapana that it wishes to continue this Agreement at the end of the then-current Initial Term or Further Term. Such notice must be given no later than one hundred and eighty (180 days before the end of then-current Initial Term or Further Term and will become effective at the end of the then-current Initial Term or Further Term.

4. Intellectual Property Rights

4.1. Title

(a) Hapana and the Customer acknowledge that:

(1) each Party owns any pre-existing Intellectual Property Rights that it created, purchased or licensed prior to entering into, and separate from, this Agreement;

(2) Hapana owns any and all Intellectual Property Rights that are created or generated as a result of, or in connection with, this Agreement;

(3) Each Party acknowledges that in the operation of this Agreement, there is no transfer of ownership or assignment of the other Party’s Intellectual Property Rights generated either prior to or as a result of the operation of this Agreement.

(4) Under this Agreement, Hapana is not granting the Customer a licence of any kind or the right to use any Intellectual Property Rights. This Agreement simply provides the Customer and/or Locations with the ability to access and use the Services covered by this Agreement (which are produced via Hapana’s Intellectual Property Rights) and any relevant Location Agreement on a subscription basis.

(5) Under this Agreement, the Customer acknowledges that Hapana retains exclusive possession and control of all underlying Intellectual Property Rights and information used in the provision of the Services, despite Hapana providing the Customer and/or Locations with access to the Services in accordance with this Agreement and any relevant Location Agreement.

(b) The Customer understands and agrees that:

(1) as between Hapana and the Customer, Hapana retains exclusive possession and control of the Intellectual Property Rights, knowledge and information used to develop the Services and Hapana’s possession, ownership and control of such Intellectual Property Rights, knowledge and information are protected by law;

(2) as between Hapana and the Customer, Hapana and/or its Affiliates own all right, title and interest in and to the Services (and all Intellectual Property Rights in the Services) and all results and proceeds of the Services pursuant to this Agreement and any relevant Location Agreement; and

(3) the access and use of the Services are provided under the terms of this Agreement for a limited duration during the Term, with both Parties acknowledging that the use of the Services (or any part or component of the Services) is not a licence, a sublicence, an assignment, a grant of a right of or sale of the software or any Intellectual Property Rights associated with the provision of the Services by Hapana to the Customer.

(c) Except as expressly set out in this Agreement or as permitted by any applicable law, the Customer agrees and undertakes:

(1) not to access or allow the Customer or any Location to copy any software elements used in the provision of the Services;

(2) not to rent, lease, licence, loan, sublicence, assign or grant any rights with respect to the Services, or any Intellectual Property Rights related to the Services; and

(3) not to make alterations to, or modifications of, translate, merge, adapt, vary or modify the whole or any part of the Services, not permit the Services or a part thereof to be combined with, or become incorporated with, any other software programs or similar outcomes.

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4.2. Ownership of Intellectual Property

For the purposes of clarity, as between Hapana and the Customer, Hapana retains legal and economic ownership of all right, title and interest in and to all the Online Subscription Based Services and Online Delivery Platform (including any and all Intellectual Property Rights in the Online Subscription Based Services, the Online Delivery Platform and Digital Component), subject to the access and use of the Online Subscription Based Services and Online Delivery Platform provided to the Customer in accordance with this Agreement (including any restrictions set out in this Agreement).

5. Customer Data and Aggregate Data

(a) Customer Data is and will remain the property of the Customer.

(b) The Customer grants to Hapana a non-exclusive, sub-licensable, royalty free licence to use the Customer Data to provide the Services to the Customer, any Location and any End Users in accordance with this Agreement.

(c) The Customer grants to Hapana a non-exclusive, sub-licensable, royalty free licence to use, copy, modify, display and distribute any anonymous information derived from Customer Data, including to improve Hapana’s offering and potentially offer new services.

(d) Hapana must not:

(i) use the Customer Data for any purpose other than directly in relation to the supply of the Services in accordance with this Agreement and any relevant Location Agreement;

(ii) purport to sell, let for hire, assign rights in or otherwise dispose of any of the Customer Data;

(iii) make any of the Customer Data available to any third party other than as provided for in this Agreement or any relevant Location Agreement or where Hapana is required to do so by law; or

(iv) commercially exploit the Customer Data, and Hapana must ensure that none of Hapana’s personnel commercially exploit any of the Customer Data.

(e) Where any Customer Data is under Hapana’s control, Hapana will:

(i) maintain safeguards against the destruction, loss or alteration of any Personal Information contained in the Customer Data to enable Hapana to comply with its obligations under the Australian Privacy Principles (APPs);

(ii) use reasonable endeavours to keep the Services secure and prevent unauthorised use of and access to the Services, including any hacking into the Service by a third Party and to assist the Customer should any breach occur;

(iii) prevent any person who is not authorised by the Customer from gaining access to the Customer Data;

(iv) only use Personal Information contained in the Customer Data for the purpose of this Agreement and any relevant Location Agreement and will handle such Personal Information in accordance with the Privacy Policy;

(v) promptly follow any reasonable direction of the Customer in relation to Personal Information contained in the Customer Data;

(vi) provide reasonable assistance to the Customer to enable it to resolve any inquiry or complaint relating to Personal Information under the control of Hapana; and

(vii) notify the Customer promptly and comply with all reasonable directions of the Customer if Hapana becomes aware of any contravention of the data security requirements set out in this Agreement in relation to the Customer Data.

(f) The Customer and each Customer Affiliate must:

(i) where applicable, comply with the Privacy Policy;

(ii) not do anything (or fail to do anything) that may reasonably cause Hapana to be in breach of the Privacy Policy; and

(iii) take all reasonable steps to ensure that no Location does anything (or fails to do anything) that may reasonably cause Hapana to be in breach of the Privacy Policy.

(g) The Customer represents and warrants to Hapana that:

(i) the Customer owns all right, title and interest in and to the Customer Data, or has the necessary licenses, rights, consents and permissions to use such Customer Data (and grant the rights for Hapana to use the Customer Data set out in this clause 5), in relation to the Services;

(ii) the Customer’s use of the Customer Data, and any use of the Customer Data by Hapana in connection with the Services, will not breach any applicable law; and

(iii) the Customer Data, and any use of the Customer Data by Hapana in connection with the Services, will not infringe the Intellectual Property Rights or any other rights of any third party.

(h) The Customer will hold harmless and indemnify Hapana, except to the extent that such loss, claim, or damages arise from or are directly attributable to the willful misconduct or gross negligence, its licensors and suppliers for any loss, claim or damages arising out of or related to any breach by the Customer of the representations and warranties set out in clause 5. The Customer acknowledges that such loss, claim or damage may arise as a result of a contractual relationship between Hapana and any third party (including its licensors and suppliers), and that such loss, claim or damage shall not be deemed Consequential Loss for the purposes of this Agreement.

(i) The Customer acknowledges and agrees that Hapana:

(i) may create Aggregate Data from the Customer Data or otherwise from the Customer’s, any Location’s and/or any End Users’ use of the Services; and

(ii) owns all Aggregate Data and may use such Aggregate Data for any purpose.

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6. Hapana’s Obligations

6.1. Support

Subject to the Customer’s full compliance with this Agreement, Hapana will supply the Customer with the following services during the Term of this Agreement:

(a) Hapana will from time to time update the Online Subscription Based Services to include patches, changes and similar procedures to the underlying software as well as the associated Online Subscription Based Services that Hapana generally provides to its other customers and end users (“Updates“);

(b) Hapana will from time to time upgrade the Online Subscription Based Services to include any upgrades, improvements or modifications to the underlying software as well as the Online Subscription Based Services that Hapana generally provides to its other customers and end users (“Upgrades“); and

(c) during Hapana’s regular business hours, Hapana will provide the Customer with basic business and technical advice (including verbal and written communications) detailing operational instructions, problem reporting and assistance in addressing technical issues associated with the use of any portion of the Online Subscription Based Services provided directly by Hapana.

6.2. Errors

(a) Subject to the Customer’s full compliance with this Agreement, Hapana will endeavour to supply the Customer with the following services during the Term of this Agreement:

(1) correction of any Errors with respect to any portion of the Online Subscription Based Services provided directly by Hapana; and

(2) incorporation of such corrections into releases of the Online Subscription Based Services.

(b) When requesting the correction of an Error, the Customer must follow the procedure set out in Schedule 1 (Service Level Requirements).

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6.3. Other services

(a) The Customer acknowledges and agrees that if requested by the Customer, Hapana may (at its sole discretion) agree to provide Additional Services (including further consulting services and development services) to the Customer. Any agreed Additional Services will be charged to the Customer at rates notified to the Customer in advance of providing the Additional Services.

(b) If the Online Subscription Based Services or any Updates or Upgrades require further modification or customisation by Hapana to enable the Customer to integrate the Online Subscription Based Services capability into the Customer’s systems, then Hapana will require the Customer to pay Hapana the additional charges for the additional modification or customisation work, at rates notified to the Customer in advance of performing work.

(c) Hapana may, in its sole discretion, modify or customise the Online Subscription Based Services from time to time in response to a written request by the Customer. The Customer must pay to Hapana the additional charges for any such modification, in accordance with the terms agreed by the Parties for such modifications. All such modifications (including any associated Intellectual Property Rights) shall remain the exclusive property of Hapana, and such modifications will be deemed part of the Intellectual Property Rights that are owned by Hapana and utilised in the delivery of the Online Subscription Based Services under this Agreement.

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7. Customer’s Obligations

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7.1. Protection of the Intellectual Property Rights associated with the delivery of the Online Subscription Based Services and Online Delivery Platform

(a) The Customer must ensure that all aspects of the Online Subscription Based Services and Online Delivery Platform are protected at all times from misuse, any unauthorised use, damage, attempts to copy or reverse engineer the Online Subscription Based Services and Online Delivery Platform.

(b) The Customer must immediately notify Hapana in writing as soon as possible after it becomes aware of any form of misuse, damage or unauthorised use that has occurred or is suspected of having occurred to any aspect of the Online Subscription Based Services or Online Delivery Platform, or attempts to copy or reverse engineer any aspect of the Online Subscription Based Services or Online Delivery Platform. If the Customer so notifies Hapana in accordance with this clause, Hapana may, at its own discretion, take such action as it deems appropriate against the infringing party in order to protect its legal and economic rights related to the Services.

(c) The Customer must not (and must take all possible steps to ensure that any other person, including any Location or End User, does not):

(1) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services;

(2) reverse engineer, reverse assemble, disassemble, or decompile the software, code systems, etc. associated with the delivery of the Online Subscription Based Services and Online Delivery Platform; or

(3) otherwise attempt to discover any source code, algorithms, copyright, trade secrets or other proprietary rights embedded in or relating to the delivery of the Online Subscription Based Services or Online Delivery Platform by any means whatsoever.

(d) The Customer must promptly supply Hapana with any information, documents, or materials with respect to the use of the Hapana Content, Online Subscription Based Services and Online Delivery Platform, as reasonably requested by Hapana at Hapana's cost.

(e) The Customer must address and respond to any inquiries or complaints regarding the use of or deliverables generated via the Online Subscription Based Services and Online Delivery Platform in a prompt and professional manner and must make Hapana aware of such inquiries or complaints in writing, in a prompt manner.

(f) Subject to payment by the Customer of the relevant additional fees and charges, Hapana agrees to provide to the Customer the Additional Services agreed to by the Parties, in a timely and professional manner.

(g) The Customer must only use (and must act reasonably to ensure that the Locations only use) the Online Subscription Based Services, Online Delivery Platform and Hapana Content strictly in the relevant Territory in accordance with the terms of this Agreement (and with respect to any Location, any relevant Location Agreement) and as otherwise directed by Hapana from time to time.

(h) The Customer must obtain Hapana’s prior written approval in the event the Customer desires to use any information, knowledge, content, outcomes, etc, with respect to the Hapana Content, Online Subscription Based Services or Online Delivery Platform for advertising or promotional purposes.

(i) The Customer must use the Hapana Content, Online Subscription Based Services and Online Delivery Platform strictly in accordance with Hapana’s reasonable specifications and directions from time to time and in compliance with all applicable laws, rules and regulations.

(j) The Customer must ensure that all environment(s) used by the Customer to enable the Customer’s and/or any Locations’ access to the Online Subscription Based Services, Hapana Content or content generated via the use of the Online Subscription Based Services or Online Delivery Platform, including by ensuring network routers and firewalls (should those be in place) are correctly configured and maintained to allow data to flow into the Online Subscription Based Services or Online Delivery Platform in a secure manner. The Customer and/or any Location must, at its own expense, provide and maintain all communications facilities required for accessing and using the Services.

(k) The provisioning, security, support, and maintenance of the Customer’s Local Area Network(s) and of all network equipment, network and Internet connections, computing devices, all software and other hardware operating on such equipment, and all APIs provided by or on behalf of the Customer to Hapana and/or to the Locations are the responsibility of the Customer.

(l) The Customer must cooperate with Hapana and must use its best endeavours to protect the Hapana Content, Online Subscription Based Services or Online Delivery Platform from any unauthorised use or use not allowed pursuant to this Agreement.

(m) The Customer is solely responsible for the accuracy of all data, information and other materials (including any Customer Data) it inputs into the Services.

7.2. Locations

(a) The Parties acknowledge and agree that Locations will generally fall into one of the following categories and sub-categories:

(1) a new location of the Customer that is operated under the Brand which is either:

(A) owned or operated by the Customer; or

(B) owned or operated by a third party that is party to a franchise, brand licence or similar agreement, arrangement or understanding with the Customer; or

(2) an existing location of the Customer that is operated under the Brand which is either:

(A) owned or operated by the Customer; or

(B) owned or operated by a third party that is party to a franchise, brand licence or similar agreement, arrangement or understanding with the Customer.

(b) The Customer must:

(1) on or prior to the Commencement Date, and on request by Hapana during the Term, promptly provide a current list of all Locations using the Online Subscription Based Services and Online Delivery Platform (with a breakdown of the Locations into the relevant categories described above);

(2) for each Location that is an existing location, use best endeavors to ensure that all such Locations migrate onto the Online Subscription Based Services and Online Delivery Platform before the end of the Migration Period (The Migration Period is the time from the Commencement Date for a period of up to 4 months). If the Customer fails to comply with this clause, the Parties agree that the Initial Term will be automatically extended by an amount of time equal to the additional period of time beyond the Migration Period until the Customer has complied with its obligations under this clause 7.2(b)(2). Hapana will provide notice to the Customer of any such extension, provided that failure to provide such notice will not in any way impact the effect of this clause 7.2(b)(2);

(3) for each Location that is a new location, ensure that all such Locations migrate onto the Online Subscription Based Services and Online Delivery Platform on or before the relevant opening date for the Premises; and

(4) use best endeavors to ensure that on or before the actual date of migration of the relevant Location onto the Online Subscription Based Services and Online Delivery Platform (i.e. both existing locations and new locations), the relevant Location enters into a Location Agreement with Hapana.

(1) in addition to the exclusivity rights set out in clause 2.5, the Customer, on its own behalf and on behalf of each Location, grants Hapana the first right of refusal for Hapana to supply to each of the Customer’s or any Location’s locations within the Territory services that are the same as or similar to the Online Subscription Based Services and Online Delivery Platform, including the provision of business management and operations services;

(2) if the Customer (or any Customer Affiliate or Location) opens a new location or begins operations outside of the Territory, the Customer grants Hapana the right of first refusal to provide relevant Online Subscription Based Services and Online Delivery Platform to the Customer (or Customer Affiliate or Location) in the new Territory under terms comparable to those within this Agreement. If Hapana is unable to provide such services to the Customer in the new Territory, Hapana will notify the Customer at the earliest possible opportunity;

(3) the Customer must promptly notify Hapana of any new locations opened or acquired by the Customer, a Customer Affiliate or a Location, regardless of their location, and use reasonable endeavours to cause such new location to use the Services;

(4) Hapana must notify the Customer in writing within 90 days after receiving a notice from the Customer pursuant to sub-clause (3) above if it wishes to supply the Online Subscription Based Services and Online Delivery Platform to the location, in which case:

(A) the Customer must use reasonable endeavours to procure that the new location enters into a Location Agreement with Hapana, if the relevant location is not already party to a Location Agreement with Hapana; and/or

(B) in addition to clause 7.2(b)(4), the Customer must negotiate, acting reasonably and in good faith, with Hapana in respect of any amendments to this Agreement requested by Hapana if the location is located outside the Territory.

(d) Where Hapana receives an instruction or directive from a Location, Hapana will be entitled to comply with such instruction or directive with respect to providing the Services to such Location; provided that, in the event any such instruction or directive directly conflicts with an instruction or direction that Hapana has received from the Customer, Hapana will notify the Customer of the conflict in writing and seek the Customer’s assistance in resolving the conflict to all parties’ satisfaction.

(e) If, having complied with clause 7.2(g), the Location, Hapana and the Customer are unable to reach an agreement regarding the conflict, Hapana will comply with the instruction or directive of the Customer. The Customer will hold harmless, defend and indemnify Hapana for any loss, claim or damages arising out of or related to Hapana’s acts or omissions in compliance with the Customer’s instruction or directive for the purposes of this clause 7.2(h) (including any claim by or damages or losses suffered by the Location).

7.3. New Brand and Additional Brands

If at any time during the Term the Customer (or a Customer Affiliate):

(a) rebrands its business, such that it is operating under a new brand, logo or trade mark (or other similar designation) (New Brand) that is different than the brand, logo or trade mark (or other similar designation) specified in the Agreement Details; or

(b) in addition to the existing Brand specified in the Agreement Details, is operating any part of its business (including any part of its business that is new or is otherwise acquired) under a brand, logo or trade mark (or other similar designation) (Additional Brand) that is different than the brand, logo or trade mark (or other similar designation) specified in the Agreement Details,

then:

(d) the Parties must add the New Brand and/or Additional Brand to the Brand specified in the Agreement Details through a formal amendment to this Agreement that is executed by both Parties. For the avoidance of doubt, any New Brand or Additional Brand is considered to be the Brand for purposes of this Agreement.

7.4. Prohibited Content

When using the Services, the Customer must not, and must use reasonable endeavors to ensure that each Customer Affiliate and Location does not, post, upload, submit, play or otherwise distribute any Prohibited Content.

8. Payment of Fees

8.1. Payment

(a) All references to the Service Fee and the Subscription Fee pricing under this Agreement are:

(1) in the Currency;

(2) per Location; and

(3) per month, unless otherwise specified.

(b) The Customer must pay all fees and charges payable by the Customer under or in connection with this Agreement (including the Fees) by direct debit. If at any time the direct debit is declined, Hapana may charge the Customer a fee of $25.00 to cover the costs and expenses incurred by Hapana in connection with the reprocessing of such payment.

(c) The Subscription Fee must be paid by the Customer to Hapana by the 15th day of each month. Billing start date for each Location commences on the date of commencement of site creation at the request of the Customer.

(d) For each Location utilising the Online Subscription Based Services or Online Delivery Platform, the Customer must pay to Hapana the Subscription Fee at the rate and in the manner specified in the Agreement Details. The Customer acknowledges that it is responsible for payment to Hapana of all fees and charges on behalf of all Locations (including, for the avoidance of doubt, for any fees and charges in connection with the Payment Services). If the Locations are paying all Fees directly to Hapana, the Customer will not be responsible to make these payments on behalf of all Locations.

(e) In consideration of Hapana providing the Customer and Locations with access to and use of the Online Subscription Based Services and Online Delivery Platform, the Customer must pay to Hapana the Service Fee at the rate and in the manner specified in the Agreement Details;.

(f) Notwithstanding clauses 8.1(d) or 8.1(e), Hapana may elect to try to collect any Fees or other amounts owed by the Customer under this Agreement related to any Location’s use of the Services (as contemplated by this Agreement and any relevant Location Agreement) directly from such Location pursuant to the Location Agreement with such Location. At any time, if more than 10% of the Locations fail to pay the Fees or other amounts owed to the Customer, this will be considered a Material Breach. The Customer must resolve such breach within 10 business days. If the breach is not resolved within this period, Hapana reserves the right to suspend access to all Locations or terminate this Agreement.

(g) Payment of any Fees after the due date for any reason (including where a direct debit arrangement is declined) shall accrue interest at the compounded daily rate of 3% above the per annum interest rate charged by the Commonwealth Bank of Australia on an overdraft facility in excess of AUD100,000.

(h) Hapana may adjust the fees and charges (including the Fees) payable to Hapana during any Further Term at any time (including during a Further Term) by providing at least 60 days’ notice in writing to the Customer. If the Customer does not accept the adjusted fees and charges, the Customer may by notice in writing to Hapana issued at least 30 days prior to the effective date of the adjustment, terminate this Agreement.

8.2. Rebates

Where the Customer is entitled to Rebates (as specified in the Agreement Details and Schedule 2), the Rebate Terms will apply to the provision of the Services.

8.3. Audit

Hapana or its nominated representative has the right at all reasonable times (upon reasonable notice) to visit the Customer’s and each Location’s premises and to audit and inspect all records, procedures and systems of the Customer and each Location which relate to the use of the Services. The Customer must (and must procure that each Location) fully cooperate with Hapana in relation to any such audit or inspection under this clause.

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8.4. Third Party Providers

The Customer acknowledges that:

(a) certain third parties (such as financial service providers) may from time to time be engaged by Hapana in connection with the provision of, and the Customer’s use of, the Online Subscription Based Services and Online Delivery Platform and that in certain circumstances, Hapana may receive consideration from such third parties in connection with the provision of, and Customer’s or any Location’s use of, the Online Subscription Based Services and Online Delivery Platform;

(b) except to the extent the Customer or any Location receives Payment Services, the Customer is solely responsible for engaging its own chosen third party provider in connection with the facilitation of credit card, debit card and other related financial transactions through the Online Subscription Based Services and Online Delivery Platform;

(1) any act or omission of such third party provider/s; or

(2) the provision of the relevant financial transaction/s;

(d) the Customer is liable and responsible to pay any fees or charges rendered by third party providers in connection with the Customer’s or any Location’s use of the Online Subscription Based Services and Online Delivery Platform, including credit and debits card transaction fees and charges, that are not already covered by the Fees;

(e) if, but only to the extent that, any Intellectual Property Rights owned by a third party are incorporated into any Services and such third party requires that the Customer agree to certain terms and conditions (Third Party Terms), then the Customer and each relevant Location will agree to such Third Party Terms for those Intellectual Property Rights subject to the Customer’s Right to request reasonable amendments to those terms, such that the licences granted under this Agreement or any relevant Location Agreement apply with only those variations required by the Third Party Terms; provided that Hapana will provide a copy of any such Third Party Terms to the Customer and each relevant Location upon request;

(f) any breach by the Customer of any Third Party Terms shall be deemed a breach of this Agreement and/or any relevant Location Agreement (as applicable). The Customer will hold harmless and indemnify Hapana, its licensors and suppliers for any loss, claim or damages arising out of or related to any breach by the Customer of any Third Party Terms. The Customer acknowledges that such loss, claim or damage may arise as a result of a contractual relationship between Hapana and any third party, and that such loss, claim or damage shall not be deemed Consequential Loss for the purposes of this Agreement; and

(g) in the event that any Intellectual Property Rights or components owned by a third party are incorporated into the Services, and such third party Intellectual Property Rights or components become unavailable, outdated or unsuitable in the opinion of Hapana in its sole and absolute discretion, Hapana may cease the provision of such third party Intellectual Property Rights or components, or substitute such third party Intellectual Property Rights or components with other third party Intellectual Property Rights or components of similar functionality without notice to the Customer.

9. Goods and Services Tax

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(a) Terms defined in the GST Act have the same meaning in this clause unless provided otherwise.

(b) If the GST Act does not apply to the consideration provided in this Agreement for a supply made under this Agreement, the provisions of the relevant International Taxation Rules shall apply.

(c) The Parties acknowledge that unless otherwise specified in the Agreement Details, the consideration provided in this Agreement for a supply made under this Agreement does not include an amount in respect of GST on the supply.

(d) If GST is or will be imposed on a supply made under or in connection with this Agreement, the consideration otherwise provided for that supply under this Agreement shall be increased by the amount of that GST and the recipient of that supply shall pay the amount of that GST to the supplier at the same time as the consideration otherwise provided for the supply is payable to the supplier.

(e) The recovery of any amount in respect of GST by the supplier under this Agreement is subject to the issuing of the relevant Tax Invoice or Adjustment Note to the recipient. The recipient must pay any amount in respect of the GST within fourteen (14) days of the issue of the relevant Tax Invoice or Adjustment Note to the recipient.

(f) If there is an adjustment event in relation to a supply which results in the amount of GST on a supply being different from the amount in respect of GST recovered by the supplier, as appropriate, the supplier:

(1) may recover from the recipient the amount by which the amount of GST on the supply exceeds the amount recovered; or

(2) must refund to the recipient the amount by which the amount recovered exceeds the amount of GST on the supply.

(g) Costs required to be reimbursed or indemnified under this Agreement must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit.

(h) If the rate of GST increases above 10%, the Customer will be liable to pay additional amounts for any such increase, in addition to the fees and charges payable under this Agreement.

(i) The Customer must pay all stamp duty, levies, taxes, and other duties arising under or in connection with this Agreement (other than tax on the overall income of Hapana and payroll tax of Hapana).

10. Limitation on Liability

(a) Other than as expressly set out in this Agreement or any Location Agreement, Hapana makes no other warranties whatsoever with respect to the Services and the Customer and each Location must rely on its own enquiries about the Services.

(b) To the fullest extent permitted by applicable law, but subject to the remainder of this clause 10:

(1) Hapana and its licensors and suppliers exclude all implied representations, warranties, terms and conditions of any kind whatsoever (whether implied by common law, statute or otherwise) and the application or availability of any statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees that the Services are of satisfactory quality or fit for their purpose); and

(c) The Customer acknowledges that the Services are made available “as is” and “as available”. Hapana and its licensors and suppliers do not represent, warrant or guarantee that the Services will be error or ‘bug’ free or available at any specific time required by the Customer.

(d) The Customer, any Location and Hapana (and its licensors and suppliers) will not be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement or any Location Agreement for any Consequential Loss.

(e) Hapana’s total aggregate maximum liability (and its licensors’ and suppliers’ total liability, if any) to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise for all losses sustained, suffered or incurred by the Customer arising under or in connection with this Agreement is limited to an amount equal to the Fees received by Hapana in the 6 months immediately prior to the most recent claim in connection with this Agreement paid by the Customer.

(f) Nothing in this Agreement or any Location Agreement is intended to exclude, restrict or modify any rights that the Customer or any Location may have under the Competition and Consumer Act 2010 (Cth) (the CCA) or any other applicable legislation which may not be excluded, restricted or modified by agreement.

(g) If the CCA or any other applicable legislation provides the Customer or any Location with any non-excludable statutory rights (including any implied representations, warranties, terms or conditions or any statutory guarantees) in respect of any goods or services supplied under this Agreement or any Location Agreement, then the exclusions of and limitations on Hapana or its licensors and suppliers’ liability in this Agreement or any Location Agreement do not apply in respect of such non-excludable statutory rights; however, where Hapana’s liability with respect to such non-excludable statutory rights may be restricted or modified, then, without prejudice to any non-excludable statutory rights that Hapana may have which may not be restricted or modified by agreement, the liability is limited to:

(1) in the case of a supply of goods, Hapana doing any one or more of the following (at its election): replacing the goods or supplying equivalent goods; repairing the goods; paying the cost of replacing the goods or of acquiring equivalent goods; or, paying the cost of having the goods repaired; and

(2) in the case of a supply of services, Hapana doing either or both of the following (at its election): supplying the services again; or, paying the cost of having the services supplied again.

(h) Each Party acting reasonably (and the Customer must procure that the Customer Affiliates and Locations) promptly mitigate any loss suffered (or likely to be suffered), sustained or incurred under or in connection with this Agreement or any Location Agreement.

(i) Hapana will not be liable for any loss or damage suffered by the Customer or any Location in connection with a loss of access to the Services caused by the act or omission of a third party hosting service.

11. Confidential Information

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(a) Each Party shall not, without the prior written consent of the other Party, disclose or use the other Party’s Confidential Information, except as necessary to fulfil the obligations imposed under this Agreement.

(b) Each Party must ensure that its employees, officers, contractors, agents and all other persons under its control or direction will comply with obligations similar to the obligations imposed on the Party under this clause.

(c) Notwithstanding any other provision of this clause, a Party may disclose the terms of this Agreement to the Party’s legal or financial advisors.

(d) This clause shall survive termination of this Agreement.

12. Restraints

(a) During the term of this Agreement, the Customer and each Location must not, either directly or indirectly, solicit or induce or attempt to solicit or induce any individual who is engaged as an employee, agent or independent contractor of Hapana, to terminate his or her employment with Hapana and/or to become an employee, agent or independent contractor of the Customer, such Location or such other person or entity.

(b) During the Term of this Agreement and for a period of 6 months after the Term, Hapana, the Customer or any Location (“First Party“) must not solicit or persuade any person or corporation who is a customer of any other First Party (such other First Party, the “Second Party“), or an end user of a customer of the Second Party, to cease doing business with the Second Party or the customer of the Second Party (as the case may be) or to reduce the amount of business which the customer or end user would normally do, in connection with the services being provided through the First Party.

(c) During the Term of this Agreement, if Customer notifies Hapana in writing of a dispute involving a franchise entity governed by their franchise agreements, Hapana will refrain from providing services to that entity or its guarantors until Customer confirms the resolution of the dispute in writing.

In the absence of such notification, and provided that the franchise entity exits Customers network without a dispute, Hapana may freely engage in service agreements with the business entity and its guarantors. Should a franchise entity or its guarantors engage Hapana’s services prior to receiving any notification from Customer regarding a dispute, Hapana shall be obligated to fulfill its commercial obligations under the new service agreement with the franchise entity or its guarantors. Any subsequent notification of a dispute by Customer shall not retroactively affect or invalidate Hapana’s obligations under such agreements, and the Customer Agreement shall not supersede or void the commitments Hapana has made under the newly executed agreement with the franchise entity or its guarantors.

This restriction applies only if the business entity or its guarantors attempt to engage Hapana’s services specifically for a ‘functional training’ single-modality boutique facility offering. It does not apply to engagements involving other modalities, sectors in the fitness industry, or unrelated business verticals.

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13. Termination

13.1. Termination

(a) In addition to the rights under clause 3(c), a Party may terminate this Agreement by notice in writing to the other Party if:

(1) the other Party breaches a term of this Agreement and the Party in breach fails to remedy such breach within sixty (60) days after receipt of the notice specifying the breach and requiring it to remedy the same; or

(2) the other Party is Insolvent.

13.2. Obligations on termination

Upon the termination of this Agreement for whatever reason:

(a) all Location Agreements will immediately terminate; and

(b) the Customer and all Locations must immediately, at the Customer’s own cost:

(1) cease to use the Services, Hapana Intellectual Property and Hapana Content;

(2) cease to use any marks, names, indicia, which in the opinion of Hapana are directly or indirectly related to the Services or any other material which may in any way indicate or tend to indicate that the Customer is or was authorised to use the Intellectual Property Rights associated with the use of the Services;

(3) request a data extraction file and pay the Exit File Fee to Hapana in full for each extraction per Location. Hapana will work reasonably with the Customer to provide access to the Customer Data including coordination and transfer of the payment method tokens securely; and

(4) at the option of Hapana, either deliver to Hapana or destroy and permanently delete:

(A) all Hapana Content;

(B) all advertising, literature or other material that refer to the Services; and

(C) any other item, including documents, which relate to any aspect of the Services, Hapana Intellectual Property or any Intellectual Property that relates to the Services and are in the possession, custody or control of the Customer.

14. Force Majeure

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(a) Neither Party is responsible for any failure to perform its obligations under this Agreement or any Location Agreement if it is prevented or delayed in performing those obligations by an event of Force Majeure. For the avoidance of doubt, an event of Force Majeure does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which was due and payable prior to the occurrence of that event.

(b) If an event of Force Majeure occurs, then, as soon as reasonably practicable, each Party agrees to give the other Party written notice of reasonably full particulars of the event, occurrence or circumstances of Force Majeure, as well as the steps taken to minimise its effects, and use all reasonable diligence and employ all reasonable means to remedy, abate or mitigate the effects of Force Majeure as expeditiously as possible.

15. Relationship between the Parties

(a) The Customer is operating the business of the Customer, which is separate and independent from any business owned or operated by Hapana. Each Location is operating the business of such Location, which is separate and independent from any business owned and operated by Hapana. Hapana is operating the business of Hapana, which is separate and independent from any business owned or operated by the Customer or any Location.

(b) The Customer and each Location is not an agent of Hapana. Hapana is not an agent of the Customer or any Location.

(c) Nothing contained in this Agreement shall be construed to constitute Hapana, on the one hand, and the Customer and all Locations, on the other hand, as partners, joint venturers or in a relationship of employer and employee, or in a relationship of franchisor or franchisee.

16. General

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(a) This Agreement is governed by the law in force in New South Wales.

(b) Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them. Each Party agrees that where possible, they will only commence proceedings in courts located within the metropolitan area of Sydney. Each Party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.

(c) Without preventing any other mode of service, any document in an action including any writ of summons or other originating process or any third or other party notice may be served on a Party by being delivered to or left for that Party at its address for service of notices under clause (d) below.

(d) A notice, approval, consent or other communication in connection with this Agreement:

(1) must be in writing unless expressly specified otherwise; and

(2) must be left at or sent by prepaid ordinary post to the address of the addressee which is specified on page 1 of this Agreement in the case of the Parties to this Agreement.

(e) Unless a later time is specified in it, a notice, approval, consent or other communication takes effect from the time it is received.

(f) A letter is taken to be received on the third day after posting.

(g) Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with this Agreement is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.

(h) A Party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise. In considering requests for its approval or consent a Party must act with reasonable promptness.

(i) A Party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that or of any other right, power or remedy. Failure by a Party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.

(j) A provision of or a right or obligation created under this Agreement may not be waived or varied, except in writing signed by the Party or Parties to be bound.

(k) The Customer may not assign its rights under this Agreement without the prior written consent of Hapana, which shall not be unreasonably withheld. Hapana may assign or novate its rights and obligations under this Agreement for any reason in its sole discretion. If Hapana elects to assign or novate all or any part of its rights, interests, obligations or liabilities under this Agreement, the Customer must, upon request by Hapana, execute (at Hapana's cost) any deed, agreement or notice of assignment acknowledging and agreeing to the assignment or novation by Hapana and work reasonable with Hapana to ensure that each Location to execute any deed, agreement or notice of assignment acknowledging and agreeing to the assignment or novation of the relevant Location Agreement (to the extent reasonably required by Hapana).

(l) This Agreement may be executed in any number of counterparts and by the different Parties hereto on separate counterparts, each of which when so executed and delivered shall be an original but all the counterparts shall together constitute one and the same instrument.

(m) On termination of this Agreement, any provision of this Agreement (including any obligations under clause 10) which expressly or by implication is intended to come into or remain in force on or after termination of this Agreement will continue in full force and effect notwithstanding any such termination.

Schedule 1 (Service Level Requirements)

When reporting an Error, the Customer must specify in writing the severity level associated with the Error. Errors must be reported by:

a) Submitting a support request to Hapana’s support team at support@hapana.com; and

b) Using the severity level guidelines set out below. Severity levels and definitions are subject to change, and Hapana will notify the Customer in writing of any changes.

Severity Level Guidelines:

Severity Level 1 – Emergency
Definition: The Online Subscription Based Services are completely non-functional, preventing the end-user from performing any critical or core business tasks.
Response Time: Within 1 hour
Resolution Time: Hapana will use commercially reasonable efforts to resolve within 4 hours.
Severity Level 2 – Severely Impacted
Definition: The Online Subscription Based Services are significantly impaired, preventing some core functionalities, but workarounds are available for other non-critical tasks.
Response Time: Within 4 hours
Resolution Time: Hapana will use commercially reasonable efforts to resolve within 1 business day.
Severity Level 3 – Limited Function
Definition: The Error impacts non-critical functions and can be circumvented or avoided temporarily without disrupting core business operations.
Response Time: Within 8 hours
Resolution Time: Hapana will use commercially reasonable efforts to resolve within 3 business days.
Severity Level 4 – Minor Problem
Definition: A minor issue that does not impair the Online Subscription Based Services and can be easily circumvented.
Response Time: Within 1 business day
Resolution Time: Hapana will use commercially reasonable efforts to resolve within 7 business days.

Uptime Guarantee:

Hapana guarantees a Monthly Uptime Percentage of 99.9%, excluding any issues that arise from actions or inactions by the Customer, Customer Affiliate, or any circumstances beyond Hapana's reasonable control, measured monthly throughout the Agreement (the “Server Benchmark“). Should Hapana fail to achieve this benchmark, the Customer will be entitled to the following service credits:

Server Benchmark & Service Credit Schedule:

99.5% to 99.89% Uptime: 10% credit
95.0% to 99.49% Uptime: 25% credit
90.0% to 94.99% Uptime: 50% credit
Less than 90.0% Uptime: 100% credit

Service credits will be automatically applied to the following month’s invoice unless otherwise agreed upon in writing.

Definitions:

Monthly Uptime Percentage: The total number of minutes in a calendar month minus the minutes of Unscheduled Downtime, divided by the total number of minutes in the month.
Scheduled Downtime: Time during which the Customer cannot access the Online Subscription Based Services due to planned system maintenance. Hapana reserves the right to schedule maintenance, provided the Customer is notified at least 24 hours in advance. Where possible, maintenance will occur during non-peak hours as determined at Hapana’s reasonable discretion.
Unscheduled Downtime: The total time during which the Customer cannot access the Online Subscription Based Services due to unplanned interruptions, excluding Scheduled Downtime. In exceptional cases where immediate unscheduled maintenance is necessary to prevent harm or mitigate critical risks, Hapana will use reasonable efforts to provide advance notice to the Customer, but reserves the right to act in its sole discretion.

Limitation of Service Credits:

Service credits are the sole and exclusive remedy for any failure to meet the uptime commitments described herein. Service credits will not be issued if the failure is due to any of the following:

Customer's equipment or third-party services beyond Hapana's control
Misuse or non-compliance with Hapana’s guidelines by the Customer or a third party acting on their behalf
Force majeure events or other factors beyond Hapana's reasonable control

Schedule 2 (Rebate Terms)

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1. Calculation and Payment of Rebates

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a. Subject to the Customer remaining in full compliance with this Agreement, including paying all Fees (owed by the Customer to Hapana and no more than 10% of all Fees owed by Locations to Hapana are outstanding) as and when they fall due, Hapana will pay to the Customer (or to any Location as nominated by the Customer) the Rebates.

b. All Rebates are calculated monthly and paid in arrears.

c. Once paid, a Rebate may not be recalled or reissued to another person without the prior written agreement of Hapana.

d. The Customer must not disclose the Rebate to any person except as otherwise required by law.

Statement of WorkTerms and Conditions (AU)