LOLA MERCHANTS' TERMS AND CONDITIONS
THIS MERCHANT TERMS AND CONDITIONS ("AGREEMENT") IS A LEGAL AND
BINDING AGREEMENT BETWEEN YOU AND LOLA AND ITS SUBSIDIARIES. PLEASE
READ IT CAREFULLY.
THIS AGREEMENT SHALL BE GOVERNED BY AND IS TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF MALAYSIA. YOU AGREE TO SUBMIT ALL DISPUTES
ARISING OUT OF OR IN CONNECTION WITH THIS USER AGREEMENT TO THE
EXCLUSIVE AUTHORITY OF THE MALAYSIA COURTS.
FOR AVOIDANCE OF DOUBTS, YOU SHALL TAKE CORRECTIVE MEASURES TO PROTECT
YOURSELF TO THE ADDITIONAL RISKS THAT WE HAVE NOT FORESEEN OR
IDENTIFIED IN THIS AGREEMENT INCLUDING BUT NOT LIMITED TO THE RELEVANT
LAWS, COMPLIANCE REQUIREMENTS AND/OR TAXATION AS ACCORDING TO THE LAWS
AND REGULATIONS OF YOUR COUNTRY.
BY SUBMITTING YOUR MERCHANT APPLICATION FORM, YOU ACKNOWLEDGE THAT YOU
HAVE READ AND FULLY UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT, THE PRIVACY NOTICE AND ALL
DOCUMENTS INCORPORATED BY REFERENCE UPON THE APPROVAL OF YOUR
APPLICATION BY US, THE APPROVAL OF WHICH IS AT OUR SOLE AND ABSOLUTE
DISCRETION.
THIS AGREEMENT IS MADE BETWEEN YOU AND LOLA AND ITS SUBSIDIARIES.
In this Agreement, "Merchant", “Partner", “you" and "your" refer to
each merchant ("Merchant") and "LOLA", "we", "us" and "our" refer
collectively to LOLA DIGITAL SDN. BHD. Registration No. 202101042629
(1442929-A), a company incorporated in Malaysia having its registered
office address at Level 23, Menara Exchange, 106 Lingkaran TRX, Tun
Razak Exchange, 55188 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur,
Malaysia ("LOLA").
Merchant and LOLA are collectively referred to as “Parties” and
separately as “Party”.
WHEREAS:
- LOLA is a is company set up in Malaysia to facilitate platforms for parents to find suitable childcare and kindergarten in Malaysia, built on structured data systems and backed by a community of parents and providers. LOLA operates on its website, www.lola.my and on LOLA mobile application. LOLA’s website and LOLA’s mobile application shall hereinafter be referred to as “LOLA Platforms”. LOLA Platforms matches parents with childcare and kindergarten service providers offering features with comprehensive information that save time and money.
- Merchant may sometimes be referred to as “Partner” for branding and marketing purposes. Merchant may offer their services (“LOLA Merchant Services”) by submitting their application to LOLA.
- DEFINITIONS AND INTERPRETATIONS 1.1 Definitions
- TERM This Agreement shall commence on the Commencement Date and continue to be in full force and effect until the expiry of the Term unless:-
- otherwise earlier terminated in accordance with this Agreement; or
- Merchant’s account is inactive and/or inoperative for more than six (6) months from the Commencement Date.
- LOLA SERVICES 3.1 Provisions of LOLA Services
- Local Debit Card & Credit Card (Visa/Mastercard) and Foreign Debit Card & Credit Card (Visa/ Mastercard): A platform fee of RM1.00 and bank charges of 1.90% will be applied upon the transaction made on the platform
- FPX (Online Banking): A platform fee of RM1.00 and FPX charges of RM0.50 will be applied upon the transaction made on the platform.
- E-wallet (TNG, BOOST, GrabPay, ShopeePay): A platform fee of RM1.00 and bank charges of 1.50% will be charged for any transaction above RM43.00 or RM0.65 for transaction below RM43.00 will be applied upon the transaction made on the platform
- Refund: In any case of refund, a fee of 1.50% will be imposed should the user used card transaction for any transaction being made in this platform.
- Settlement Day: Daily settlement is executed in T+1 basis (excludes Saturday, Sunday and Public Holidays)
- PAYMENT OF SETTLEMENT 4.1 Subject to Clauses 4 and 5, LOLA shall remit the Settlement to the Merchant on a real time basis together a report (“Settlement Report”) containing a breakdown of Settlement for the relevant Transactions undertaken.
- DISPUTED TRANSACTION 5.1 The Merchant shall provide the Products and/or Services to the User ONLY UPON CONFIRMATION of the Transaction by LOLA.
- REFUND 6.1 Where the User made payment via the LOLA Account and thereafter request for a refund. If the Merchant agrees to such refund:-
- CAMPAIGNS 7.1 LOLA may initiate Campaigns from time to time which may be taken part by the Merchants. The payment terms under these Campaigns shall be agreed by the Parties from time to time. LOLA reserves the right to Charge Back should LOLA is of the opinion that LOLA has overpaid the Merchant for any reason whatsoever.
- EXCLUSION AND LIMITATIONS OF LIABILITY 8.1 Otherwise as expressly stated in this Agreement, in no event will LOLA, its affiliates, or any of their respective officers, directors, agents, joint venturers, employees, or representatives, be liable to you or anyone on your behalf, for any indirect, special, incidental, intangible, or consequential damages, including without limitations, loss of revenues or data, whether based in contract, tort, negligence, strict liability, or otherwise, arising out of or in connection with authorized or unauthorized use of the site or services or this Agreement, this may include, without limitation, viruses, errors, or technical disruptions, indirectly caused, which may affect the site, our services, a transaction, or this Agreement, save and except for the Settlement which is due and payable to the Merchant in accordance with this Agreement.
- INDEMNITY 9.1 The Merchant shall fully indemnify LOLA for all losses, damages, claims, cost and expenses in respect of or in connection with any and all actions, suits, claims, demands and/or proceedings brought against LOLA with respect to, in connection with or resulting from:
- VIOLATIONS BY THE MERCHANT 10.1 The Merchant shall not engage in any of the following behaviour:
- ADVERTISING AND PROMOTION 11.1 The Merchant shall honour all the promotional/advertising schemes which may be introduced by LOLA.
- MERCHANT'S COVENANTS, REPRESENTATIONS AND WARRANTIES 12.1 Merchant hereby covenants, represents and warrants that:
- its use of Merchant Account;
- its dealings with the Users; and
- its processing, use and disclosure of the Users’ data;
- PRIVACY POLICY AND OWNERSHIP By using LOLA Platforms, you acknowledge and agree to review and be bound by our Privacy Notice (https://lola.my/privacy-notice). The Privacy Notice outlines how we collect, use, disclose, and protect your personal information and data. Please review the Privacy Notice to understand our practices and your rights.
- CONFIDENTIALITY 14.1 All Confidential Information disclosed or communicated by LOLA to the Merchant or obtained by the Merchant from LOLA in connection with this Agreement including but not limited to the business and operations of LOLA and the terms of this Agreement shall be treated as Confidential Information unless the information:-
- INTELLECTUAL PROPERTY RIGHTS (IPR) 15.1 The Merchant acknowledges that the copyright, designs, trademarks and other Intellectual Property Rights comprised in the information, text, graphics, scripts, software, technology, music, sound, photograph, logos, widgets, documents and/or any materials provided by LOLA (“LOLA’s IPR”) are the sole and exclusive property of LOLA and/or its licensors.
- DATA PROTECTION 16.1 Merchant shall always endeavour to keep all data related to the Transaction under this Agreement secure and will follow industry practice and any guidelines issued by any regulatory authority from time to time. As part of data security obligations Merchant shall safely store Merchant Account authentication information such as login ID and password. Apart to fulfil its audit purposes, the Merchant acknowledges and agrees not to store the LOLA Account credentials of the User in any form including without limitation by creating logs.
- SUSPENSION OF MERCHANT’S LOLA ACCOUNT 17.1 LOLA shall be entitled, without any liability to the Merchant, to immediately suspend the Merchant Account (including withholding any Settlement to the Merchant) by written notice to the Merchant if, in the sole and absolute opinion of LOLA that:
- TERMINATION 18.1 Without prejudice to any other rights of the Parties under this Agreement or at law, this Agreement may be terminated:
- the other Party is in material breach of any warranty, terms and conditions of this Agreement and such breach is incapable of being remedied or where capable of remedy, is not remedied within thirty (30) days of receipt of notice in writing by the non-defaulting Party specifying the nature of the breach;
- an order is made or an effective resolution is passed for the reconstruction, amalgamation of the other Party under the Companies Act 2016 or any other similar action or proceeding under any other law and the order or resolution is not withdrawn, revoked or annulled within a period of ninety (90) days from the date of the order or resolution;
- an order is made or an effective resolution is passed for winding up or dissolution of the other Party and the order or resolution is not withdrawn, revoked or annulled within a period of ninety (90) days from the date of the order or resolution;
- a receiver, receiver and manager, official manager, provisional liquidator, liquidator, or like official is appointed over the whole or a substantial part of the undertaking and property of the other Party and such appointment is not withdrawn, revoked or annulled within a period of ninety (90) days from the date of such appointment;
- a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of the other Party and such action is not withdrawn, invalidated or reversed within a period of ninety (90) days from the date of such appointment; or
- the other Party ceases its business; or
- the Merchant is in breach of any acts, statutes, laws, by-laws, rules and/or regulations imposed by any party, regulatory body, or government agency.
- the Merchant is in breach of any provisions that falls under Appendix A and Appendix B of this Agreement;
- the Merchant is unable to justify the occurrence of a downtime and not being able to resolve the problem within reasonable timeline stipulated by LOLA;
- there is a change in the management, constitution, nature or control of the Merchant’s business from that existing on the date of this Agreement; or
- CONSEQUENCES OF TERMINATION OR EXPIRY OF AGREEMENT 19.1 The termination or expiry of this Agreement, in whole or in part, does not operate as a waiver of any breach by a Party of any of its provisions and is without prejudice to any rights, liabilities or obligations of any Party which have accrued up to the date of termination or expiry including the right of indemnity.
- All amounts accrued and payable shall become immediately due and payable.
- The Merchant shall forthwith return to the LOLA such equipment, originals and any copy of any software, books, documents, records, papers and materials of LOLA in its possession.
- The Merchant shall immediately cease holding itself out as a Merchant to LOLA and shall immediately cease using the LOLA Platforms and/or Merchant Account, LOLA’s IPR and remove all signs, names, insignia, advertisements and/or any other material which identifies it as part of the network of LOLA and shall return to LOLA all literature and other material relating to LOLA in its possession.
- MODIFICATION OF TERMS; CHANGES TO SERVICES. 20.1 No revision, modification and/or change to the scope of the LOLA Platforms and any charges and/or fees payable under this Agreement shall take effect until the same has first been mutually agreed in writing by the Parties.
- immediately upon posting of the revised Agreement on the LOLA Platforms or upon electronic or written notification to the Merchant, where such revision or change is to comply with legal or regulatory requirements; or
- Seven (7) days after posting of the revised Agreement on the LOLA Platforms, or upon electronic or written notification to the Merchant, in other cases.
- any representation by any agent, representative or employee of any third party that you may use to apply for LOLA Platforms; or
- information posted on LOLA Platforms of a general informational nature.
- NOTICES 21.1 All notices, statements, demands, requirements or other communications and documents required or permitted to be given, served or delivered to any Party under this Agreement (hereinafter referred to as a “Communication”) shall be in writing in the English language and shall be either delivered by hand or sent by pre-paid certified or registered mail (airmail in the case of all international Communication) to that Party at its address stated below. A Communication once given, served or delivered shall be irrevocable without the consent of the recipient, which may be given or withheld, in its absolute discretion. A Communication shall be deemed to have been given, served or delivered:
- FORCE MAJEURE 22.1 Neither Party shall be liable for any cost or otherwise, for any delay and/or failure in the execution of their respective obligations if such delay or failure is due to Force Majeure.
- DISPUTE RESOLUTION 23.1 In the event that there is any dispute or claim arising out of or in connection with this Agreement or the interpretation of this Agreement (“Dispute”), either party may issue a written notice (“Dispute Notice”) to the other Party stating the nature of the Dispute and requesting that the authorised representatives of each Party resolve the Dispute. If the authorised representatives of the Parties are not able to resolve the Dispute after a period of ninety (90) days from the date the Dispute Notice or such other extended period as may be mutually agreed between the Parties, then the Parties will attempt to settle the Dispute by mediation which shall take place in accordance with the Malaysia’s Asia International Arbitration Centre (AIAC) for the time being in force. The mediation shall start not later than thirty (30) days after the appointment of the mediator. Provided that the right to issue proceedings is not prejudiced by a delay, no Party shall commence arbitration or court proceedings in relation to any Dispute until the following:
- it has attempted to settle the Dispute by mediation and no settlement is reached within ninety (90) days after the commencement of the mediation or such other extended period as may be agreed by the Parties; or
- the mediation is terminated or ended without the Parties reaching a settlement on the Dispute.
- GENERAL 24.1 This Merchant Agreement including any annexures thereof and the Merchant Application Form shall constitute a binding contract between the Parties hereto. In the event that there are any inconsistencies between the Merchant Agreement and the Merchant Application Form, the Merchant Agreement shall prevail.
In this Agreement where the context so admits the following expressions shall have the meaning designated unless otherwise distinguished:
| "Agreement" | means this Merchant Terms and Conditions including but not limited to any annexures thereof, the Privacy Notice and the LOLA Merchant Application Form submitted by you/on your behalf; |
| “LOLA Platforms" | means the website of www.lola.my and/or mobile application named as “LOLA” or such other name as may be determined by LOLA from time to time which is downloaded by the User; |
| "LOLA User's Account" | means account created by users of LOLA Platforms. |
| "Merchant Account" | means account registered by Merchant on LOLA Platforms. |
| "LOLA Merchant Services" | means the Products and/or Services offered by Merchant on LOLA Platforms |
| "LOLA Merchant Charges" | means (a) the Setup Fees (if any); (b) the Transaction Fee; |
| "Campaign" | means campaigns/ activities/ initiatives which may be initiated by LOLA from time to time which may be taken part by the Merchant; |
| "Commencement Date" | means the commencement date of Merchant Account as LOLA may notify you via electronic mail or any other methods as determined by LOLA from time to time; |
| "Confidential Information" | means any documents, knowledge, data, or information of
whatsoever nature disclosed to or acquired by the Merchant
directly or indirectly from LOLA in connection with the
Agreement, or otherwise including, but not limited to the
following: (a) financial information; (b) technical information, including but not limited to research, development, procedures, data, designs, and technical know-how; (c) business information, including but not limited to operations, planning, marketing interests, and services disclosed by LOLA to the government or regulatory body; (d) personal information/data of any Users, and LOLA’s staff; and (e) all confidential or proprietary concepts, documentation, reports, lists, files, data, specifications, software, source code, object code, flow charts, databases, data files, inventions, information, knowhow and trade secrets, whether or not patentable or copyrightable; |
| "Charge Back" | means, where relevant, any disputed transactions arising from the Campaigns, which may be charged to the Merchant by way of Deduction; |
| "User" | means any person holding a valid LOLA User’s Account and purchases Products and/or Services from the Merchant and makes payment for the same using his LOLA User’s Account; |
| "User’s Charges" | means the cost of the Product and/or Services purchased or availed by the User plus all other taxes, duties, costs, charges and expenses in respect of the Product and/or Services that are to be charged to the User’s LOLA Account; |
| "Deductions" | means: (a) LOLA Merchant Charges; (b) Refunds (if applicable); (c) Charge Back (if applicable); (d) any amounts required to cover potential or expected Refunds or Charge Back (if applicable); (e) any other charges or amounts due to LOLA under this Agreement or otherwise; |
| "RM" | means Ringgit Malaysia, the currency of Malaysia. |
| "Intellectual Property Rights" | means all of the following: (a) trademarks (including trade dress), service marks, logos or trade names, whether registered or unregistered, together with the goodwill associated with any of the foregoing, and all registrations, renewals and applications for registration thereof; (b) those rights existing under the copyright laws for those works subject to the copyright laws and copyright registrations and applications for registration thereof, including all renewals and extensions thereof; (c) rights in trade secrets, confidential business information and other proprietary information (including concepts, ideas, designs, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, drawings, models, tools, algorithms, Software architectures, methods, knowhow, technical data and databases, discoveries, inventions, research and development, formulas, modifications, extensions, improvements and other proprietary content); (d) rights in computer software programs, including but not limited to application software, system software, firmware, middleware and mobile digital applications, including all source code, object code, and documentation related thereto, in any and all forms and media (e) rights in domain names, domain name registrations and web pages; and (f) all other intellectual property rights in any and all jurisdictions throughout the world; |
| "Merchant Application Form" | means the binding application form filled up and submitted by the Merchant offline or online; |
| "Personal Information" | means personal data as defined in Malaysia’s Personal Data Protection Act 2010; |
| "Privacy Notice" | means the privacy notice applicable to the Personal Information of Merchant and/or the personnel of the Merchant which can be found at www.lola.my |
| "Product" | means a tangible or intangible commodity/product manufactured, marketed, distributed and/or sold by the Merchant, to the User, the payment for which is to be made through the LOLA User’s Account; |
| "Refund" | means a request made by a User to reverse a Transaction under Clause 6 hereof. For avoidance of doubt, Refund can only be made upon mutual agreement between Merchant and User; |
| "Settlement" | means the User Charge less the Deductions; |
| "Service(s)" | means any service that Merchant offers to provide and that is availed of by the User, the payment for which is to be made through the LOLA User’s Account; |
| "Setup Fee" | means a one-off, non-recurring and non-refundable fee payable (if applicable) to LOLA at the time of signing this Agreement or such other time prior to the commencement of the Merchant Account in the amounts set forth in the Appendix of Merchant Application Form or otherwise agreed by the Parties; |
| "Term" | means the term as stated in the Appendix of the Merchant Application Form as approved by us or otherwise agreed by the Parties; |
| "Transaction" | means every demand of the User to the Merchant, which results in the supply of Product or provision of Service by Merchant to the User; |
| "Transaction Fee" | means a fee payable by the Merchant to LOLA for each Transaction based on the formula set forth in the Appendix of Merchant Application Form or otherwise agreed by the Parties. |
In this Agreement, unless the context otherwise requires:
(a) reference to any legislation or provisions shall include any statutory modification and reenactment of any legislative provisions substituted for and all legislation and statutory instruments issued by such legislation or provisions;
(b) references to any document or agreement in this Agreement (including the Agreement) shall be deemed to include references to such document or agreement as may be amended, novated, supplemented, varied, or replaced from time to time;
(c) references to clauses shall be read in the case of sub-clauses, paragraph and sub-paragraph as being reference to sub-clauses, paragraph and sub-paragraph in this Agreement as may be appropriate;
(d) references to any Party to this Agreement or any other document or agreement shall include its successor-in title or permitted assigns;
(e) heading to clauses are for convenience only and shall not affect the interpretation thereof;
(f) words denoting the singular number shall include the plural and vice versa;
(g) words denoting individuals shall include corporations and vice versa;
(h) words denoting a gender shall include all genders;
(i) the Recitals and/or schedules attached hereto shall be construed as essential part of this Agreement; and
(j) no rule of construction and/or interpretation applies to the disadvantage and/or detriment of the Party having control and/or being responsible for the preparation of this Agreement.
(a) In consideration of the mutual promises and undertakings, LOLA agrees to provide a platform where businesses, especially childcare and kindergarten businesses can amplify their brand visibility and increase business efficiency.
(b) Upon the creation of a Merchant Account by the Merchant, LOLA shall make available to the Merchant, the Merchant Account and a login name and password will be generated, to enable the Merchant to: accept payments for the Products and/or Services sold and/or provided by the Merchant by using the Merchant Account.
3.2 Payment Through LOLA Account
Merchant acknowledges that LOLA acts as an intermediary and enables the User to make payment, by using the LOLA User’s Account. User’s Charges to be charged by Merchant shall be inclusive of all taxes (if applicable) and miscellaneous charges.
LOLA uses SenangPay as its payment gateway provider, as such, any payment and/or transaction made using SenangPay may be subjected to transaction fees. Please take note of the following to ensure transparency and clarity to financial transactions;
3.3 Maintenance
LOLA may undertake scheduled maintenance and/or emergency maintenance of the Merchant Account from time to time and LOLA will use reasonable endeavour to notify the Merchant of the same. LOLA shall not be liable for any losses incurred by the Merchant arising from LOLA’s performance of maintenance under this Clause 3.3.
3.4 No Warranties of Merchantability and Fitness of Use
LOLA disclaims all warranties, express or implied, written, or oral, including but not limited to warranties:-
(a) of merchantability and/or fitness for a particular purpose; and
(b) that Merchant Account, LOLA Merchant Services and LOLA User’s Account will be available at all times and that it would be uninterrupted and virus/malware/error free.
4.2 LOLA will remit all Settlement to the Merchant Account.
4.3 LOLA may hold back from the Settlement any amounts reasonably required to cover potential or expected Refunds or Charge Back (if applicable).
4.4 With respect to each Settlement made, the Merchant shall reconcile its sales report against the Settlement Report (where the same is provided by LOLA) for the relevant Transactions. If the Merchant discovers any discrepancy in the Settlement by LOLA, the Merchant shall within fourteen (14) days from the Settlement Date notify LOLA of such discrepancy together with the relevant supporting documents evidencing the discrepancy, failing which the Merchant waives its rights to raise any dispute and is deemed to have accepted the Settlement made by LOLA as correct. Where the Merchant notifies LOLA of a discrepancy within the timelines stated herein, the Parties shall resolve the discrepancies in good faith as soon as practicable.
4.5 Should there is any dispute in relation to the Settlement or any payment between the Parties, LOLA shall only remit the undisputed amount or part thereof to the Merchant prior to the resolution of such dispute.
4.6 Both Parties shall bear their own cost of any obligation imposed upon them under the applicable law with respect to any taxes (if applicable) or similar items in connection with this Agreement.
4.7 It shall be the Merchant’s responsibility to ensure that the details of the Merchant Account details provided to LOLA remain accurate and correct throughout the Term of this Agreement and should keep LOLA updated if there are any changes. LOLA shall not be held liable should the Settlement or any monies are being remitted to a wrong account if the Merchant fails to comply with this clause.
5.2 You acknowledge that transactions made on the Merchant Account are non-cancellable and you cannot change or reverse any Transaction which has been completed or is pending. LOLA shall not be responsible for any Transactions that have not been confirmed by LOLA.
5.3 All disputed Transaction shall be the sole liability of the Merchant.
5.4 LOLA shall not under any obligation or responsibility to investigate any disputed Transaction.
5.5 Where LOLA is notified of any invalid or disputed Transactions, LOLA will notify the Merchant of the same by email and where possible accompanied by a sufficient and reasonable explanation of the reason for it. LOLA will classify the Transaction as disputed and debit it back to Merchant.
5.6 The Merchant agrees to investigate disputed Transactions and take all reasonable steps to resolve disputes with Users within seven (7) days and follow the procedures for handling disputed Transactions which LOLA advises from time to time. LOLA shall have the right to suspend the processing of such Transaction or withhold the Settlement to the Merchant of the amount of such Transaction until the satisfactory completion of any investigation.
5.7 A Transaction may be regarded as invalid by LOLA if:
(a) the Transaction was declined for any reason but the same was processed by the Merchant;
(b) it is for any reason incomplete unlawful and unenforceable;
(c) the Transaction found to be a duplicate transaction; or
(d) it is not processed as per the Merchant Account’s operating guide as per Appendix A.
5.8 The Merchant shall resolve any disputes, claims or complaints the Merchant may have received from the User in respect of any Transaction using Merchant Account. LOLA shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and the User in relation to the Transaction including but not limited to the quality of the Product and/or Services, overcharging or late delivery unless it can be reasonably shown by the Merchant that such dispute arose, directly or indirectly, from the gross negligence, fraudulent act, material default or breach, material errors and/or omissions by LOLA and the provision of Merchant Account Services under this Agreement.
(a) on the same day when the relevant Transaction took place (the “Transaction Day”), the Merchant shall take necessary steps to void/ cancel the Transaction through the relevant feature available on LOLA Apps and make sure that such cancellation is communicated to LOLA on the same day. The Merchant shall then be responsible for the refund to such User;
(b) after the Transaction Day, the Merchant shall manually refund the User. For the avoidance of doubt, LOLA is entitled to retain the relevant Merchant Account Service Charges.
6.2 LOLA shall not be responsible in any manner whatsoever for any losses, claims, damages, costs and expenses incurred by the User and/or the Merchant arising from the Refund.
6.3 LOLA shall not be responsible for Merchant Account. The Merchant shall keep LOLA fully indemnified from all liability, losses, damages, cost and expense incurred by LOLA arising out of or in connection with the misuse of the same.
8.2 We shall only be liable to you for loss or damage caused directly and reasonably foreseeable by our breach of this Agreement and our liability in these circumstances will be limited to an amount that is no greater than the transaction in dispute. Where we are considering a specific claim relating to a specific transaction, this sum shall be further limited to the amount of the transaction in dispute.
8.3 No terms or condition of this Agreement shall benefit or create any right or cause of action in or on behalf of any person or entity other than LOLA and the Merchant. The provisions of this paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense or losses whether in contract, statute, tort (including, without limitation, negligence), or otherwise.
8.4 The services are provided on an "as is" and "as available" basis without any representation or warranty, whether express, implied or statutory. LOLA specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and/or non-infringement. LOLA does not make any representations or warranties that your access to the site, the services, or any part or materials made available therein, will be error free, continuous, uninterrupted, or accurate.
(a) breach or non-performance by the Merchant of any of its undertakings, warranties, covenants, declarations or obligations under this Agreement; and
(b) any claim brought by a User with respect to the Products and/or Services provided by the Merchant (including Refund).
(a) attempts to tamper, hack, reverse-engineer, modify or otherwise corrupt the security or functionality of LOLA Platform or the Merchant Account;
(b) using the Merchant Account for money laundering activities;
(c) manipulate or exploit LOLA’s promotional campaigns/ activities or other Merchant Account in anyway which LOLA may deem as improper, irregular, or dishonest.
11.2 Unless otherwise expressly specified by LOLA in writing, the Merchant shall procure all marketing and promotional materials directly from LOLA.
11.3 In the event the Merchant decides to produce its own materials in promoting LOLA, all uses of LOLA ’s Intellectual Property Rights, including without limitation its logo and brand name shall be subject to our written approval. The Merchant shall send copies of all materials which contain uses of our Intellectual Property Rights to us in advance of their use at the e-mail address indicated in this Agreement.
11.4 Upon LOLA’s request, the Merchant shall display prominently at its premises, LOLA ’s brochures and/or other publicity material provided to it by LOLA.
11.5 LOLA or its agents shall at all reasonable times have the right to entry and inspect the outlet or trading premises of the Merchant (if applicable).
11.6 The Merchant shall participate in initiatives that LOLA may announce from time to time, such as new User acquisition activities including those assisted by a promoter funded by LOLA, in User promotional campaigns, in Merchant-get-Merchant campaign and other forms of Merchant loyalty programs etc.
11.7 The Merchant hereby agrees that LOLA may from time to time, display the Merchant’s logo, branding (including any marks and/or images available on public domains) on its platform without further approval from the Merchant and the Merchant shall indemnify LOLA against all actions, proceedings, costs, claims, demands, loss, damages, liabilities and expenses howsoever incurred, suffered, paid or payable by LOLA in anyway arising from such usage.
(a) it has the full authority and power to enter, execute and deliver this Agreement and to carry out and perform the services contemplated under this Agreement;
(b) the execution by Merchant of this Agreement constitutes legal, valid, and binding obligations on the Merchant;
(c) the execution, delivery and performance of this Agreement will not violate any order, judgment, or decree against or binding upon Merchant;
(d) it shall comply with all applicable consumer, personal data protection and other laws and regulations with respect to:
(e) it shall ensure the safety and confidentiality of its login name and password and shall keep LOLA fully indemnified from all liability, losses, damages, cost, and expense incurred by LOLA arising out of or in connection with the misuse of the same. The Merchant shall immediately notify LOLA upon learning of any unauthorized use of its login name and/or password;
(f) it shall observe the guidelines, procedure or such other updates as provided by LOLA from time to time during the term of this Agreement;
(g) it shall install any updates, fixes, and patches whenever they are made available or notified of its availability by LOLA;
(h) it has the full right and/or authority to offer the applicable Products and/or Services and shall at its own cost obtain and maintain the necessary licenses and approvals from the government or any regulatory body for the provision of such Products and/or Services and performance of its obligations under this Agreement;
(i) it shall always, display the logo and other such trademarks of LOLA that may be mutually agreed at the retail outlet or trading platform of the Merchant;
(j) it shall provide LOLA the information as required by LOLA at the time it desires to become the Merchant of LOLA;
(k) the products and services as detailed as Prohibited items in Appendix B and such other prohibited items which LOLA may notify from time to time shall not be sold by the Merchant;
(l) it shall be solely responsible for all User service issues relating to the Transaction, Products and Services sold by the Merchant, including but not limited to User Charge, order fulfilment, order returns, refunds, exchanges and adjustments, rebates, functionality and warranty, technical support, User complaints and feedback concerning experiences with its personnel, policies or processes and the Merchant shall bear any and all expenses and/or costs relating thereto;
(m) it shall not conduct any unlawful or illegal transactions using Merchant Account;
(n) it shall immediately report to LOLA upon the discovery of any fraud, theft, loss, unauthorized usage, or any other occurrence of unlawful or illegal acts in relation LOLA Platforms, Merchant Account and/or their respective use. The Merchant agrees to lodge a police report whenever instructed by LOLA and to give LOLA a certified copy of such report;
(o) it shall cooperate with LOLA and provide all Transaction related details required by any government or regulatory body;
(p) other than the equipment and terminals provided by LOLA (if any), it shall be responsible for all other equipment (including upgrades and modifications required) necessary to use the Merchant Account Service and LOLA Account and to carry out the Transactions, and also for the security and integrity of all information and data transmitted, disclosed and/or obtained through the use of the Merchant Account Service and/or LOLA Account; it shall not impose any restrictions and/or conditions on the use of LOLA Account and/or Merchant Account as a mode of payment other than that approved or prescribed by LOLA;
(q) it shall not charge the User any additional fee or charges in addition to the User Charges other than goods and service tax imposed by law (if applicable);
(r) it shall keep proper account and correct copies of all documents/records relating to the Transactions and LOLA shall be allowed at any reasonable time to inspect or take copies of all such documents and shall preserve such documents and records for a period of at least two years from the transaction date;
(s) it shall not use the Merchant Account and/or LOLA Platforms in any manner and/or engage in any activities which is prejudicial to LOLA and/or in any manner which would bring disrepute to LOLA, all of which shall be determined based on LOLA’s opinion;
(t) it shall ensure that the account registered by the Merchant on Merchant Account remains personal to itself and it shall not register an account on behalf of any third party or in any way transfer/assign the account to any third party without LOLA’s prior written consent;
(u) it shall be solely responsible for the Merchant’s outlets and staffs’ account management and LOLA shall not be responsible for any consequences arising from the abuse or misuse of Merchant’s account management; and
(v) it shall not use the LOLA Platforms and/or Merchant Account in any manner dishonestly or in bad faith or with malicious intent, in LOLA’s opinion
You acknowledge and agree that LOLA retains full ownership of all data submitted and collected by Merchant in connection with Merchant's enrolment for and use of the Lola Platforms, in compliance with applicable law. By submitting the data, Merchant grants LOLA royalty-free ownership, title, and interest in the data to fulfil its rights and obligations under this Agreement, as outlined in Lola's Privacy Notice. LOLA may also use any information and data it collects or receives independent of this Agreement.
LOLA also acquired the necessary rights to use, reproduce, modify, create derivative works of, license, sublicense, distribute, and exploit the data for the operation of the LOLA Platforms and the business of its subsidiaries, affiliates, associated companies, and jointly controlled entities.
In addition, Merchant also acknowledges and accepts that LOLA, as outlined in Lola's Privacy Notice, may make direct contact with the users for the purposes stated therein. Merchant shall not consider such communication a breach of its rights under any relevant data protection and privacy regulations.
(a) is or becomes publicly available through no fault of the Merchant;
(b) which the Merchant can prove was in its possession or known to it prior to its receipt from LOLA;
(c) is or was rightfully received by the Merchant from a third party without a duty of confidentiality being owed by the Merchant to the third party, except where the Merchant has knowledge that the third party has obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to LOLA; or
(d) was independently developed by the Merchant without the use of the Confidential Information. 14.2 The Confidential Information shall be held in strict confidence by the Merchant, using no lesser security measures and degree of care as it uses to protect its own Confidential Information. In any event, the security measures and the degree of care it uses shall, as a minimum, comply with the standards imposed by the applicable laws including but not limited to the Personal Data Protection Act 2010. The Merchant shall further ensure that the Confidential Information is secured from unauthorised access from internal and external parties and that all Confidential Information used, stored and/or processed shall be free from virus, malware or other malicious codes.
14.3 The Confidential Information shall only be used, copied, reproduced, distributed or disclosed by the Merchant strictly for the purposes contemplated under this Agreement only. The Confidential Information may, however, be disclosed:
(a) to its employees or its legal and financial advisers strictly on a need to know basis to implement or perform this Agreement only provided its employees and advisers are subject to and maintain the confidentiality obligation under this Agreement and the Merchant shall indemnify LOLA for any damages, losses, cost and expenses suffered or incurred by LOLA arising out of or in connection with any breaches thereof by its employees and advisers; and/or
(b) if its disclosure becomes mandatory pursuant to any laws or any acts of authority or rules of any stock exchange, or is for the purposes of court proceedings.
14.4 Where the Merchant is required to disclose any Confidential Information pursuant to any laws or any acts of authority or rules of any stock exchange, or is for the purposes of court proceedings, the Merchant:
(a) shall where practicable and lawful give of at least a twenty four (24) hours’ notice to LOLA that it is required to disclose the Confidential Information so that LOLA has an opportunity to protect the confidentiality of its Confidential Information; and
(b) provides LOLA with a copy of the Confidential Information that the Merchant is to disclose.
14.5 Upon the expiry or termination of this Agreement, the Merchant shall promptly return to LOLA or, where instructed, destroy Confidential Information of LOLA and immediately cease using all Confidential Information. Where required by LOLA, the Merchant shall provide to LOLA a written undertaking confirming that it has fully complied with the requirements of this Clause 14.5 and that it is not in possession or control of any of LOLA ’s Confidential Information.
14.6 The Merchant shall ensure that each of its personnel strictly complies with the obligations under this Clause 13.
14.7 All ownership and Intellectual Property Rights in LOLA ’s Confidential Information shall remain vested in LOLA.
14.8 Parties therefore agree that the LOLA shall be entitled to obtain injunctive relief, or any other restraining or any other appropriate order against the Merchant in the event of any threat or disclosure of Confidential Information.
14.9 The obligations of the Merchant in this Clause 14 shall survive for a period of five (5) years after the termination or expiry of this Agreement.
15.2 The Merchant may utilise the LOLA ’s IPR strictly in accordance with the instruction and guidelines of LOLA issued and/or communicated by LOLA from time to time and solely for the activities contemplated in this Agreement only.
15.3 The Merchant further agrees and undertakes that save as expressly permitted in this Agreement it shall not without LOLA ’s prior written consent:
(a) reproduce, copy, reverse compile, adapt, modify, distribute, commercially exploit, display, broadcast, hyperlink or transmit in any manner or by any means or store in an information retrieval system any part of LOLA ’s IPR; and
(b) create or use derivative works from LOLA ’s IPR
(a) the Merchant has breached any warranty, terms, and conditions of this Agreement; and
(b) any of the events stipulated in Clause 18.1(b)(i) to (iv) and/or in Clause 18.1(c) occurs to or is committed by the Merchant.
17.2 The issuance of such suspension notice shall not in any way prejudice or prevent LOLA from exercising its rights to terminate this Agreement under Clause 18 with respect to the same breach and/or event.
(a) by a Party by giving written notice where:
(b) by LOLA by giving written notice where:
18.2 Notwithstanding anything to the contrary, LOLA may terminate this Agreement, without any liability whatsoever to the Merchant, and without assigning any reason whatsoever, by giving thirty (30) days written notice to the Merchant.
19.2 On termination or expiry of this Agreement by either Party for any reason:
20.2 With respect to any other changes to the Agreement, the Merchant agrees that LOLA may revise, modify and/or change the same with prior written notice to the Merchant. Any such revision, modification or change will be binding and effective either, at LOLA’s sole discretion:-
20.3 The Merchant agrees to periodically review the LOLA Platforms, including the current version of this Agreement available on the LOLA Platforms, to be aware of any such revisions.
20.4 If the Merchant does not agree with any revision to the Agreement, the Merchant may terminate this Agreement at any time by providing LOLA with notice in writing.
20.5 Such notice of termination will be effective on receipt and processing by LOLA.
20.6 Except as otherwise provided in this Agreement, in the event the Merchant terminates this Agreement, any fees paid by the Merchant are non-refundable.
20.7 By continuing to use LOLA Platforms after any revision to this Agreement, the Merchant agrees to abide by and be bound by any such revisions or changes.
20.8 LOLA is not bound by nor should the Merchant rely on:
(a) if delivered by hand, upon delivery with acknowledgement;
(b) if sent by electronic mail, twenty-four (24) hours after e-mail is sent;
To LOLA:
Attention :LOLA Merchant Unit
Email :merchant@lola.my
Contact No. : 019 900 9056
To the Merchant:
The address, fax number and email as stated in the Merchant Application Form or otherwise provided to LOLA by Merchant.
22.2 Force Majeure shall mean any factors or impediment that are beyond the Party’s reasonable control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of this Agreement or to have avoided its consequences including but not limited to war, revolution, insurrection, riots, blockage or embargo, emergency, accident, fire, earthquake, flood, storm, industrial strikes, lockouts or other labour disputes not instigated or caused by the affected Party for the purposes of avoiding its obligations herein, pandemics and viral outbreak. Provided that an event of Force Majeure shall not include economic downturn, non- availability or insufficient funds, or lack of financing on the part of the affected Party to carry out its obligations under this Agreement.
22.3 If either Party is prevented or delayed in the performance of any obligation under this Agreement by events of Force Majeure, the affected Party shall give written notice thereof to the other Party within seven (7) days of the happening of such event, specifying the details constituting Force Majeure and the anticipated period during which such prevention, interruption or delay may continue.
22.4 Where possible the Parties shall diligently mitigate or remove the effects of Force Majeure. Either Party upon receipt of the notice of Force Majeure shall confer promptly with the other and agree upon a course of action to remove or alleviate such effect and shall seek reasonable methods of resuming full performance of its obligations and achieving the objectives under this Agreement.
Where mediation is not successful, then either Party may refer the Dispute to arbitration in accordance with the rules of the Malaysia’s Arbitration Act 2005 for the time being in force.
23.2 The arbitration proceedings shall be conducted in English and the seat and place of arbitration shall be Kuala Lumpur, Malaysia.
23.3 There shall be a single arbitrator to be mutually agreed in writing by the Parties and if the Parties fail to agree within thirty (30) days from the date the Dispute is referred to arbitration, the arbitrator shall be appointed by the Director of the Asian International Arbitration Centre (Malaysia).
23.4 A Party shall not be prevented from seeking or obtaining an enjoining order, interim order or interim relief in the court prior to the arbitral tribunal being instituted.
23.5 Recognition and enforcement of the arbitration award may be rendered in any court of competent jurisdiction, as the case may be.
23.6 The Parties agree that the arbitration award shall be final and binding on the Parties.
23.7 To the fullest extent permitted by law, each of the Parties hereby expressly waive any right under any relevant laws and regulations, decrees or policies having force of law that would otherwise give a right to appeal against the decision of the arbitral tribunal, and the Parties agree that no Party shall appeal to any court against the award or decision contained therein.
23.8 No Party or person involved in any way in the creation, coordination or operation of the arbitration of any Dispute may disclose the existence, content or results of the Dispute or any arbitration conducted under this Agreement in relation to that Dispute unless the same is required by law or rules of any stock exchange.
23.9 Notwithstanding the provision of this Clause 22, a Party may pursue remedies for breach of confidentiality under Clause 14 and/or with respect to its Intellectual Property Rights in the Singaporean courts.
24.2 Nothing in this Agreement shall be construed as to create the relationship of employeremployee, partners, collaborators, joint-venture or principal-agent between the Parties hereto. The Parties shall be independent contractors and neither Party shall bind the other by its acts, deeds or omissions.
24.3 This Agreement supersedes all previous negotiations, writings, commitments or agreements, either oral or written, between the Parties hereto.
24.4 This Agreement shall be binding on and shall tenure for the benefit of each of the Parties’ successors. The Merchant shall not assign nor transfer any of its rights, benefits or obligations under this Agreement save with the prior written consent of LOLA.
24.5 The illegality, invalidity or unenforceability of any provision of this Agreement under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction nor the legality, validity or enforceability of any other provision of this Agreement.
24.6 Failure or delay on part of either Party to enforce any provision(s) of this Agreement at any point of time shall not be construed to be a waiver by such Party of such rights thereafter to enforce each and every provision of this Agreement.
LOLA MERCHANT ACCOUNT OPERATING GUIDE
1. Merchant shall not split a single sale into more than one Transaction.
2. Merchant must not process a transaction after receiving decline response (Exception: System failure for that transaction, Transaction time-out, User Request to reprocess).
3. Merchant shall stop processing the Transaction as soon as LOLA tells Merchant to do so.
4. The Account transaction must not be a payment for goods or services that violates a law that applies to Merchant or the Account holder or for goods and services outside the description of Merchant’s business.
5. Merchant shall not attempt to levy service charge for use of Account and must not attempt to set minimum transaction limits for Transaction for the use of Merchant Account.
APPENDIX B
PROHIBITED ITEMS
1. Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services;
2. Body parts which includes organs or other body parts;
3. Child pornography which includes pornographic materials involving minors;
4. Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection;
5. Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms;
6. Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items;
7. Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property;
8. Illegal goods, which includes materials, products, or information promoting illegal goods or enabling illegal acts;
9. Offensive goods, which includes literature, products or other materials that: (a) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors (b) Encourage or incite violent acts (c) Promote intolerance or hatred;
10. Offensive goods, crime that includes crime scene photos or items, such as personal belongings, associated with criminals;
11. Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments;
12. Any product or service, which is not in compliance with all applicable laws and regulations in Malaysia.
