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ORDERPAY’S PROFIT DISTRIBUTION PLEDGE


Last updated: February 2021

CHECKFER LIMITED, trading as ORDERPAY (registered in England and Wales under company number 10863591), whose registered office is at 20-22 Wenlock Road, London, N1 7GU (“Company”), provides the OrderPay Platform to entities who have entered into an Operator Agreement with the Company in respect of the OrderPay Platform, have successfully completed Onboarding and which are trading through the OrderPay Platform (“Participating Operator(s)”), to enable them to offer multichannel ordering and payment services to their customers.

As part of its offering the Company is willing to distribute a percentage of its profits attributable to the transaction revenue generated through the OrderPay Platform to its Participating Operators in accordance with the terms of this Pledge.

1. DEFINITIONS

1.1 In this Pledge capitalised terms shall have the following meanings:

  • Accounts means the Company’s annual statutory accounts for the relevant Financial Year;
  • Business Day means any day which is not a Saturday, Sunday or a public or bank holiday in England;
  • Distributable Profits means 30% of the Profit;
  • Financial Year means the financial year of the Company beginning on 1 April and ending on 31 March (or such dates as changed from time to time in accordance with applicable law);
  • Initiatives means the charities and/or hospitality sector initiatives to whom a Participating Operator may elect to donate its Participating Operator Share pursuant to clause 2.1;
  • Onboarding means the process by which an entity is approved as an operator by both the Company and the Payment Processor, indicated in written confirmation from the Payment Processor that the entity is able to receive payments via the Payment Processor;
  • Operator Agreement the OrderPay terms and conditions, together with the relevant Fee Schedule, which are separately agreed between the Company and all Participating Operators;
  • OrderPay Council means the body (consisting of the Company and representatives of the Participating Operators chosen by the Company) that reviews and selects the Initiatives to be proposed to the Participating Operators in respect of the distribution of the Distributable Profits for each Financial Year;
  • OrderPay Platform means, together, (i) the web portal made available by the Company to the Participating Operators to which Participating Operators’ own content management systems are integrated pursuant to the provision of the deployment services undertaken by the Company and/or onto which the Participating Operator is able to upload content, and (ii) the mobile app generally made available by the Company to consumers on the iOS and Android platforms from time to time;
  • Participating Operator Share means the Participating Operator’s share of the Distributable Profits which shall be its pro rated portion of the Distributable Profits calculated as the value of the Transactional Revenue generated by the Participating Operator for the relevant Financial Year as a percentage of the aggregate Transactional Revenue for the relevant Financial Year;
  • Payment Processor means the third party provider, nominated by the Company or agreed in writing between the Company and the Participating Operator, with whom the Participating Operator enters into a separate contract for the provision of services in respect of the transactions facilitated by the OrderPay Platform;
  • Profit means the Transactional Revenue less attributable operational costs (including, without limitation, tax) for the relevant Financial Year, as approved by the Company’s Board in the board meeting in which the Accounts for the relevant Financial Year are approved; and
  • Transactional Revenue UK transactional revenue processed through the OrderPay Platform.

1.2 In this Pledge:

  • 1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  • 1.2.2 a reference to writing or written includes e-mails but not faxes.


2. PROFIT SHARING

2.1 Following the approval of the Distributable Profits by the Company’s Board in the board meeting in which the Accounts for the relevant Financial Year are approved and the selection of the Initiatives by the OrderPay Council, the Company shall contact each Participating Operator to enable the Participating Operator to elect for its Participating Operator Share to be either:

  • 2.1.1 donated to one or more Initiatives; or
  • 2.1.2 paid directly to the Participating Operator; or
  • 2.1.3 exchanged for services to be provided by the Company.

2.2 The Company shall act upon the Participating Operator’s election promptly upon receipt.

2.3 The Company reserves the right to adjust the percentage of the Profits that shall be treated as Distributable Profits by geography with notice to the Participating Operators. Not less than six months’ notice shall be given, such adjustment shall only apply with effect from the following Financial Year and no such adjustment shall be made prior to September 2023.

3. TERMINATION OF PARTICIPATION

3.1 The Participating Operator’s participation under this Agreement shall automatically terminate upon the Operator Agreement terminating or expiring for any reason. A Participating Operator shall be entitled to terminate its participation in the Profit distribution under this Pledge at any time by notice to the Company.

3.2 Upon termination of its participation the Participating Operator shall not be entitled to any Distributable Profit in respect of the Financial Year during which such services cease, or any subsequent Financial Year.

3.3 The Company shall be entitled to terminate its Profit distribution under this Pledge in respect of all Participating Operators by notice to the Participating Operators, provided that not less than 12 months’ notice shall be given and such termination shall not take effect prior to September 2023.

4. NOTICES

Any notice or similar communication given under or in connection with this Pledge shall be sent via email to the email address communicated by the recipient to the sender from time to time and shall be delivered at 09.00 on the next Business Day after sending.

5. ASSIGNMENT

A Participating Operator shall not assign, transfer, charge, create a trust over or otherwise deal in this Pledge or any of its rights or obligations under this Pledge (or purport to do so) without the prior written consent of the Company.

6. AMENDMENTS

The Company shall be entitled to amend the terms of this Pledge by giving not less than 30 days’ prior notice to the Participating Operator.

7. RIGHTS OF THIRD PARTIES

This Pledge does not create any right or benefit enforceable by any person not a party to it except for a person who under clause 5 is a permitted successor or assignee of the rights or benefits of a party that may enforce such rights or benefits.

8. GOVERNING LAW AND JURISDICTION

8.1 This Pledge and any dispute shall be governed by and construed in accordance with the law of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute.

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