AGREEMENT FOR SOFTWARE AS A SERVICE
BETWEEN Clubland Services Pty Ltd (ACN 670449260) ("Software Provider") AND the party which has agreed to purchase the Product subject to this Agreement ("Client").
(1) BACKGROUND
The Software Provider owns all rights in the Product and Services.
The Client wants to use the Product and Services.
The Parties have agreed for the Client and the Authorised Users to have web-based access to the Product and Services, through a server which is hosted by the Software Provider, on the terms set out in this Agreement.
In consideration of the matters described above, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Software Provider and the Client hereby agree as follows:
(2) DEFINITIONS
In this Agreement, the following definitions apply:
"ACL" means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth).
"Agreement" means this Agreement for Software as a Service.
"Agreement Date" means the date that the Client registers for the Product and agrees to this Agreement.
"Claims" means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise.
"Client" means the party that has registered for the Product and agreed to this Agreement.
"Client Account" means the Client's account which has been registered with the Software Provider.
"Client Data" means any personal information, data or other information which the Client submits or the Software Provider otherwise acquires in connection with the Client's use of the Product, Services or Documentation.
"Commencement Date" means the date that the Client entered this Agreement.
"Confidential Information" has the meaning described in the "Confidential Information" clause of this Agreement.
"Documentation" means any documentation or materials related to the Product, such as instructional materials which the Software Provider provides as part of the Services.
"Fees" means fees paid by the Client to the Software Provider in accordance with this Agreement.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law.
"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).
"Intellectual Property" means the Product, the Services, the Documentation ("Items") and any amendments, modifications or updates to the Items, any copies of the Items, any customised versions of the Items, any third party products or materials that are used in the Items, and any related products or services provided by the Software Provider or any subcontractor, representative or other third party on behalf of the Software Provider, to the Client or any third party on behalf of the Client. This may include but is not limited to code, software and, processes, business systems, business know-how, trade secrets, moral rights, goodwill, designs, copyrights, patents, trademarks, trade dress, industrial design, circuit layout rights, trade names, business names, brand names, logos, or other similar rights, or rights to apply for any of these rights.
"Losses" means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs and other expenses of any nature whatsoever.
"Party" means either the Client or the Software Provider.
"Parties" means the Client and the Software Provider collectively.
"Product" means the software product to be provided by the Software Provider to the Client, as described in the "Product" clause of this Agreement.
"Receiving Party" in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly).
"Services" means the services to be provided by the Software Provider to the Client, the specific description of which is set out in this Agreement.
"Software Provider" means Clubland Services pty Ltd.
"Supplying Party" in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly).
"Termination Date" means the earlier of the date that this Agreement is terminated by the Client or the Software Provider, or the date of expiry of this Agreement.
"Term" has the meaning set out in the "Term" clause of this Agreement.
"Third Party Materials" has the meaning set out in the "Third Party Materials" clause of this Agreement.
"We" or "Us" means the Software Provider, Clubland Services pty Ltd.
"Website" means the Software Provider's website which is located at: Www.clublandservices.com.
(3) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:
(a) Words referring to one gender include every other gender.
(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.
(c) If a word or phrase is defined in this Agreement then any grammatical variations of that word or phrase have a corresponding meaning.
(d) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(e) Any reference to time is a reference to time in New South Wales.
(f) In the event that something must be done under this Agreement on or before a particular date, if that date falls on a day which is not a business day, then that thing must be done on or before the next business day.
(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
(h) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
(i) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(j) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation.
(k) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time.
(l) A reference to a Party also includes that Party's successors, assigns, legal personal representatives and/or any person that is substituted by way of novation.
(m) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars.
(4) TERM
(a) This Agreement applies for the following period of time ("Term"): Until unsubscribing.
(b) This Agreement applies throughout the Term including any renewal or auto-renewal period.
(5) CLIENT
(a) To register for the Product and Services, the Client must enter their identifying details in their Client Account.
(b) The terms and specifications set out in the Client Account, including the Client's identifying details, form part of this Agreement.
(6) PRODUCT AND SERVICES
(a) This Agreement relates to the following Product:
www.clublandservices.com
(b) This Agreement relates to the following Services:
Full access to the Clubland Services platform and access to any features relevant to the applicable subscription level
(c) Subject to the terms of this Agreement, the Software Provider grants the Client access to the Product and agrees to provide the Services to the Client.
(7) CLIENT RIGHTS AND OBLIGATIONS
(a) Subject to the terms of this Agreement, and subject to the Client's compliance with the terms of this Agreement and payment of all Fees, the Software Provider grants the Client the following rights:
(I) the royalty free, non-exclusive, non-transferable, worldwide, limited right to access and use the Product and Services for the Client's commercial or personal purposes;
(II) the right to access and use the Product and Services during the Term of this Agreement including any renewal or auto-renewal period;
(III) the right to access and use any Documentation related to the Product, the Services and the Client Account;
(IV) the right to share the Product, Services and Documentation with any Authorised Users strictly in accordance with this Agreement; and
(V) the right to make copies of the Documentation if reasonably required by the Client in order to use the Product and Services in accordance with this Agreement, provided that such copies of the Documentation will be the property of the Software Provider, will contain the Software Provider's copyright notices, and will be deleted by the Client upon the termination of this Agreement.
(b) The Client may only use the Product, Services and Documentation in accordance with this Agreement.
(c) The Client must:
(I) ensure that the Product, Services and Documentation are protected at all times from unauthorised use, damage or destruction;
(II) ensure that the Product, Services and Documentation are not used or accessed by any unauthorised person or entity;
(III) follow all reasonable instructions that the Software Provider may give in relation to the Product, Services or Documentation;
(IV) comply with any reasonable requests that the Software Provider may make and provide any information or documentation reasonably requested by the Software Provider in order to verify that the Client is using the Product, Services and Documentation in accordance with this Agreement;
(V) grant the Software Provider (or the Software Provider's agent) with any access to the Client's facilities and systems that the Software Provider reasonably requires in order to verify that the Client is using the Product, Services and Documentation in accordance with the terms of this Agreement; and
(VI) upon the termination of this Agreement, promptly delete any copies (whether full or partial copies) of the Product, Services or Documentation that the Client may have, so that such copies will be permanently removed from the Client's systems and facilities (including any cloud storage systems) and will be irretrievable by the Client.
(d) The Client is solely responsible for ensuring that it has the appropriate equipment, facilities or infrastructure to access the Product and Services, including but not limited to internet connection, bandwidth, software, and hardware.
(e) The Software Provider reserves the right to provide any instructions to the Client regarding the Client's use of the Product and Services which the Software Provider considers in its sole discretion to be reasonably necessary to ensure that the Product and Services are available and are operating effectively, efficiently and reliably.
(8) CLIENT RESTRICTIONS
(a) The Client must not use the Product, Services or Documentation in any way which does not comply with this Agreement.
(b) The Client must not use the Product, Services or Documentation for any unlawful purpose.
(c) The Client must not use the Product, Services or Documentation in a way which could damage the Product, Services or Documentation or which could harm the Software Provider's business.
(d) The Client must not reverse engineer, decompile, disassemble, extract, modify, or otherwise copy the Product, Services or Documentation except in accordance with this Agreement or with the express written approval of the Software Provider.
(e) The Client must not violate the security or functionality of the Product, Services or Documentation via any circumvention of security tools or encryption, any unauthorised access, any data mining or any interference with any data, network, systems or other users.
(f) The Client must not sell, assign, licence or transfer the Client's rights under this Agreement to any other person or entity.
(g) Unless otherwise expressly agreed by the Software Provider, the Client must not use the Product, Services or Documentation for the purpose of gathering email addresses, harvesting data and/or personal information from people or entities and/or for sending unsolicited emails.
(h) The Client must not use the Product, Services or Documentation to violate any of the Software Provider's intellectual property rights, or the intellectual property rights of any third party.
(i) The Client must not use the Product, Services or Documentation to harass, abuse, or threaten any other person or entity or to otherwise violate any other person or entity's legal or moral rights.
(j) The Client must not use the Product, Services or Documentation to commit any fraud.
(k) The Client must not use the Product, Services or Documentation to distribute, share, upload or publish any obscene or defamatory material, or any material which incites violence, hatred, discrimination towards any person, group of people, or community.
(l) The Client must not use the Product, Services or Documentation to distribute, share, upload or disseminate any computer viruses, malware, or any other software which may cause harm to any property, person or entity.
(m) The Client must not use the Product, Services or Documentation to engage in any unlawful gambling, sweepstakes or pyramid schemes.
(n) The Client must not use the Product, Services or Documentation to unlawfully gather information about other people or entities.
(o) The Client acknowledges and agrees that the Client is responsible for the actions of any of the Client's Authorised Users, that the Client is responsible for ensuring that the Authorised Users use the Product, Services and Documentation in accordance with this Agreement, and that the Client is responsible for monitoring the Client's Authorised Users to ensure that they are using the Product, Services and Documentation in accordance with this Agreement.
(9) AUTHORISED USERS
(a) For the purposes of this Agreement, any persons named in the Client Account as authorised to use the Product Services shall be considered an Authorised User.
(b) The Client is responsible for ensuring that any Authorised Users use the Product, Services and Documentation in accordance with this Agreement. Any act or omission by an Authorised User which would, if performed by the Client, constitute a breach of this Agreement shall be deemed a breach of this Agreement by the Client.
(c) The Client indemnifies and keeps indemnified the Software Provider against any losses or liabilities whatsoever, whether direct or indirect, which the Software Provider incurs as a result of an act or omission by an Authorised User in relation to this Agreement, the Product, Services or the Documentation.
(10) FEES
(a) Up to date Fees are displayed on the Website (See F.A.Q's). In consideration for the Client's use of the Product, Services and Documentation in accordance with this Agreement, the Client must pay the Fees as described on Website.
(b) The Client's obligation to pay the Fees is subject to the provision by the Software Provider to the Client of a valid tax invoice.
(c) Unless otherwise specified in writing, any stated Fees do not account for GST or any other taxes, duties, levies or other charges, and the Client is responsible for paying any applicable GST or other taxes, duties, levies or charges in addition to the Fees.
(d) The Fees may be updated from time to time. Up to date Fees are displayed on the Website. By registering for the Product and Services, or renewing the Client's registration, the Client agrees to the current Fees as published on the Website at the time of registration or renewal.
(11) PAYMENT
(a) Fees may be paid by such payment methods as directed by the Software Provider from time to time ("Payment Method").
(b) The Client must pay any applicable taxes, duties, levies or other charges, including but not limited to GST, at the same time that the Client pays the Fees.
(c) The Fees are payable throughout the Term of this Agreement.
(d) The Client authorises the Software Provider to take payment of the Fees via the Payment Method.
(e) In the event that the Client renews their registration after updated Fees have been published on the Website, the Client agrees to the updated Fees and authorises the Software Provider to take payment of the updated Fees via the Payment Method.
(f) In the event that the Client fails to pay any Fees or other amounts due under this Agreement, the Software Provider may terminate the Client's access to the Product and Services.
(g) In the event that the Client fails to pay any Fees or other amounts due under this Agreement, and such amounts are more than 28 days overdue, the Software Provider may charge interest on such overdue amounts at a rate of 10% per annum compounded daily.
(12) QUALITY OF PRODUCT AND SERVICES
(a) The Software Provider must perform the Services and deliver the Product using reasonable care and skill for a software provider in its field.
(13) AVAILABILITY OF PRODUCT AND SERVICES
(a) The Software Provider will use its best endeavours to maintain the Product and Services to ensure that they are available and are operating effectively, efficiently and reliably. However, the Software Provider makes no warranties that the Product or Services will be available on an uninterrupted or error-free basis.
(b) The Software Provider reserves the right from time to time to make the Product and Services unavailable for the purposes of maintenance, updates or other scheduled interruptions, as described in the "Interruptions" clause of this Agreement.
(c) The Client acknowledges and understands that from time to time the Product and Services may be unavailable for reasons outside the control of Software Provider, including actions of a third party, technical problems, or actions of the Client.
(d) The Client agrees that if the Client encounters any problems with the Product or Services, the Client will communicate such problems to the Software Provider as soon as reasonably possible.
(e) The Software Provider accepts no responsibility for any unavailability, malfunction, failure, or delay in performance of the Product or Services resulting from any act of the Client, any issues with the Client's equipment, facilities or infrastructure, or any alteration, update or modification which the Client requests.
(f) The Client acknowledges and understands that the availability, effectiveness, efficiency, and reliability of the Product and Services depends on the Client's equipment, facilities and infrastructure including but not limited to the Client's internet infrastructure and internal systems. The Client is solely responsible for ensuring that it has suitable equipment, facilities and infrastructure.
(g) In the event that the Product or Services become unavailable for any reason during the Term of this Agreement, and unless otherwise required by the ACL or other applicable law, the Software Provider may in its sole discretion:
(I) at its own expense, take any reasonable steps to rectify the matter including by way of updates, patches, work arounds or other similar solutions; or
(II) provide the Client with a refund of any Fees which the Client has paid and which relate to the period during which the Product or Services have been unavailable.
(14) INTERRUPTIONS
(a) The Software Provider may suspend access to the Product or Services in accordance with this clause.
(b) The Software Provider may suspend access to the Product or Services in order to perform maintenance work.
(c) The Software Provider may suspend access to the Product or Services in order to investigate and/or deal with a security breach.
(d) The Software Provider may suspend access to the Product or Services in order to make updates or amendments to the Product and/or Services.
(e) The Software Provider may suspend access to the Product or Services in order to preserve data and/or the Software Provider's systems.
(f) The Software Provider may suspend access to the Product or Services in the event of a system failure or malfunction.
(g) The Software Provider may suspend access to the Product or Services in the event that the Client breaches this Agreement.
(h) The Software Provider may suspend access to the Product or Services in the event that the Client uses the Product or Services in a manner which the Software Provider reasonably considers to be inappropriate.
(i) In the event that the Software Provider suspends access to the Product or Services in accordance with this clause, the Client will not be entitled to any refund (except as otherwise required by law), and the Software Provider will not be liable to the Client or to any officers, employees, contractors, agents or other representatives of the Client.
(15) UPDATES
(a) The Software Provider may make updates, amendments, modifications or changes to the Product or Services at any time, in the Software Provider's sole discretion.
(b) The Software Provider may release new versions of the Product or Services at any time, in the Software Provider's sole discretion.
(c) The Client acknowledges and agrees that access to the Product or Services may be interrupted as a result of any updates or amendments to the Product or Services, or any new versions of the Product or Services which the Software Provider releases.
(d) Except as otherwise agreed in writing and except for the Fees, the Client is not liable for any additional fees, charges or other costs in connection with any updates or amendments to the Product or Services, or any new versions of the Product or Services.
(16) MAINTENANCE
(a) The Software Provider will maintain the Product and Services at the Software Provider's cost.
(b) It is the Software Provider's responsibility to perform such maintenance of the Product and Services as is reasonably required to ensure that they remain available for the Client in accordance with this Agreement.
(c) It is the Software Provider's responsibility to monitor the Product and Services to ensure they are secure and are operating effectively, and to determine whether any maintenance is required.
(d) The Client acknowledges and agrees that access to the Product or Services may be interrupted as a result of any maintenance of the Product or Services which the Software Provider is required to undertake.
(e) The Software Provider is not responsible for any maintenance of the Client's equipment, facilities or infrastructure. The Client acknowledges and agrees that the Client is solely responsible for maintaining the Client's equipment, facilities and infrastructure.
(17) TECHNICAL SUPPORT
(a) The Software Provider will offer technical support in relation to the Product and Services ("Support").
(b) The Support is available for the Client and any Authorised Users.
(c) The Client and any Authorised Users may access the Support as follows:
Via emailing support@clublandservices.com or through the online chat function (where applicable)
(18) THIRD PARTY MATERIALS
(a) The Product and Services may involve code, software, infrastructure or other components which have been provided by third parties ("Third Party Materials").
(b) The Software Provider makes no warranties that any Third Party Materials will be available on an uninterrupted or error free basis, or will be compatible with the Client's equipment, facilities and infrastructure including but not limited to the Client's internet infrastructure and internal systems.
(c) The Client is solely responsible for ensuring that they have the necessary equipment, facilities and infrastructure including but not limited to internet infrastructure and internal systems to allow the Client to access and make use of the Third Party Materials.
(d) In the event that the Client is required to register for the Third Party Materials, it is the Client's sole responsibility to maintain a valid registration for the Third Party Materials.
(e) The Client is solely responsible for complying with any terms and conditions which apply to their use of the Third Party Materials.
(19) CLIENT ACKNOWLEDGEMENTS
The Client acknowledges and agrees that:
(a) The Client uses the Product and Services at the Client's own risk.
(b) It is the Client's sole responsibility to ensure that the Product and Services suit the Client's requirements and are appropriate for the Client's purposes.
(c) It is the Client's sole responsibility to ensure that the Product and Services are compatible with the Client's equipment, facilities and infrastructure including but not limited to the Client's internet infrastructure and internal systems.
(d) It is the Client's sole responsibility to ensure that the Client's intended use of the Product and Services will comply with all applicable laws and regulations.
(e) The Client is not relying on any representations made by or on behalf of the Software Provider except for any representations that are expressly set out in this Agreement.
(f) In the event that the Software Provider has made any representations to the Client which are not set out in this Agreement, the Client has had an opportunity to independently verify the information contained in that representation.
(g) In providing the Product and Services, the Software Provider has not given any professional advice to the Client and no fiduciary relationship has been created between the Client and the Software Provider.
(h) The Software Provider will not be liable for any failure of the Product or Services to deliver an outcome, result or function which is not set out in the Documentation.
(i) The Software Provider will not be liable for any failure of the Product or Services to deliver an outcome, result or function if that failure can be reasonably attributed to:
(I) the Client's use of an outdated version of the Product or Services;
(II) the Client's failure to follow the Software Provider's directions in relation to the use of the Product or Services;
(III) a modification or update to the Product or Services which has not been performed by the Software Provider;
(IV) the Client's use of the Product or Services in a manner which is contrary to the Software Provider's directions;
(V) the Client's use of the Product or Services in a manner which is contrary to the directions set out in the Documentation;
(VI) the Client's use of the Product or Services in a manner which is contrary to this Agreement;
(VII) the Client's use of the Product or Services with other software, equipment, facilities or infrastructure without the Software Provider's consent; or
(VIII) any errors or omissions in the data, inputs or other information that the Client submits in connection with the Product or Services.
(j) It is the Client's sole responsibility to back up any data and information that the Client submits in connection with the Product or Services. The Software Provider accepts no responsibility for any loss or corruption of any data or information submitted in connection with the Product or Services.
(k) It is the Client's sole responsibility to interpret, analyse, and draw its own conclusions from any results, data, outputs or information which it obtains from the Product or Services.
(l) This clause will survive the termination, expiration or completion of this Agreement.
(20) SUBCONTRACTING AND ASSIGNMENT
(a) The Software Provider may subcontract or assign any of its rights or obligations under this Agreement.
(b) The Client may not, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Software Provider.
(21) CONFIDENTIAL INFORMATION
(a) Each Party ("the Receiving Party") shall keep the confidential information of the other Party ("the Supplying Party") confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under this Agreement. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party's obligations under the provisions of this clause, and must ensure that the Receiving Party's officers, employees and agents meet those obligations.
(b) For the purpose of this Agreement, "Confidential Information" means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:
(I) information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
(II) information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
(III) any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;
(IV) any information derived from any other information which falls within this definition of Confidential Information;
(V) any copy of any Confidential Information; and
(VI) the fact that discussions are taking place between the Parties
but does not include information which:
(VII) was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
(VIII) is, or becomes, publicly available, through no fault of the Receiving Party;
(IX) is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
(X) is provided to the Receiving Party by the Supplying Party and is marked "Non Confidential"; or
(XI) is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
(c) If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
(d) This clause will survive the termination, expiration or completion of this Agreement.
(22) INTELLECTUAL PROPERTY
(a) The Software Provider must ensure that the Product and Services will not infringe on or violate the intellectual property rights or any other right of any third party.
(b) The Software Provider owns all intellectual property rights in the Intellectual Property.
(c) The Client acknowledges and agrees that the Software Provider owns all intellectual property rights in the Intellectual Property.
(d) Nothing in this Agreement transfers or assigns any intellectual property rights in the Intellectual Property to the Client.
(e) Except for the specific rights to use the Intellectual Property, which the Software Provider grants to the Client under this Agreement, the Client has no other rights to use, distribute or share the Intellectual Property.
(f) The Client must not do anything, or allow anything to be done by its officers, employees, contractors, agents or other representatives, which undermines, diminishes, harms, or contests in any way the Software Provider's intellectual property rights in the Intellectual Property.
(g) The Client must follow all reasonable directions given by the Software Provider in relation to the Intellectual Property including any reasonable directions in relation to enforcement action against infringers of the Software Provider's intellectual property rights in the Intellectual Property.
(h) In the event that the Client discovers any infringement of the Software Provider's intellectual property rights in the Intellectual Property (whether or not it is the fault of the Client), the Client must immediately notify the Software Provider of such infringement.
(i) This clause will survive the termination, expiration or completion of this Agreement.
(23) THIRD PARTY LINKS
(a) You hereby acknowledge that We may from time to time include links or references to other websites, other content or other materials (hereinafter "Third Party Links"), none of which are controlled by Us.
(b) You hereby acknowledge that these Third Party Links are provided for Your information only and that We do not make any representations, warranties or guarantees as to the accuracy, completeness, performance, reliability, timeliness, quality or suitability for a particular purpose of these Third Party Links. We do not endorse, approve or support these Third Party Links. You use the Third Party Links at Your own risk.
(24) DATA AND PRIVACY
(a) By using the Product, Services or Documentation, the Client may provide the Software Provider with some Client Data.
(b) By using the Product, Services or Documentation, the Client authorises the Software Provider to use the Client Data, in Australia and any other country where the Software Provider operates, for the purpose of performing the Software Provider's obligations under this Agreement.
(25) YOUR MANDATORY RIGHTS UNDER THE ACL
(a) This clause sets out some rights which you (the Client) have under the Australian Consumer Law ("ACL").
(b) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(c) to cancel your service contract with us; and
(d) to a refund for the unused portion, or to compensation for its reduced value.
(e) You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(26) LIMITATION OF LIABILITY
(a) The Client may have certain rights under the Australian Consumer Law ("ACL"), or under other similar or related consumer protection laws.
(b) The ACL (or any other similar or related consumer protection laws) may give the Client certain rights, warranties, guarantees and remedies regarding the provision of products and services by the Software Provider, which cannot be excluded, modified or restricted by the Software Provider ("Statutory Rights").
(c) The Software Provider's liability to the Client is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Agreement.
(d) To the maximum extent permitted by law, the Software Provider excludes all conditions and warranties implied by custom, law or statute, except for the Client's Statutory Rights, and the Software Provider expressly disclaims all warranties of any kind.
(e) The Client hereby agrees that the Client is solely responsible for determining whether the Product and Services are fit for the Client's purpose.
(f) Except in cases of death or personal injury caused by the Software Provider's negligence, the Software Provider's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement, shall be limited to Fees paid by the Client to the Software Provider.
(g) To the extent it is lawful, the Software Provider shall not be liable to the Client in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Client of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.
(h) When the Client's Statutory Rights apply, to the maximum extent possible, the Software Provider's liability in respect of any claim is limited to, at the Software Provider's option:
(I) the supply of the Product and/or Services again; or
(II) the payment of the cost of having the Product and/or Services supplied again.
(i) The Software Provider's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
(j) Without limiting the effect of any other provisions of this Agreement, the Software Provider will not be liable to the Client for any loss or damage (including consequential loss or damage) which the Client (or any third party) may suffer, whether direct or indirect, which may arise as a result of:
(I) any suspension of access to the Product or Services in accordance with this Agreement;
(II) the Client's use of the Product or Services;
(III) any defect, error, malfunction, loss or delay in the Client's access to the Product or Services or to any information related to the Product or Services;
(IV) any defect, error, malfunction, loss or delay in the Client's access to the Product or Services which is caused by or influenced by a third party;
(V) any defect, error, malfunction, loss or delay in the Client's access to the Product or Services which is related to the Client's equipment, facilities and infrastructure including but not limited to the Client's internet infrastructure and internal systems; or
(VI) any defect, error, malfunction, loss or delay in the Client's access to the Product or Services which is related to third party equipment, facilities or infrastructure.
(k) The Client is solely responsible for ensuring that the Client complies with all applicable laws and regulations.
(l) This clause will survive termination, expiration or completion of this Agreement.
(27) INDEMNITY
(a) Except for any payment in settlement from any applicable insurance policy or policies, and to the extent permitted by law, the Client hereby indemnifies, keeps indemnified, and holds harmless the Software Provider, as well as any of the Software Provider's employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, injuries, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:
(I) a breach by the Client of this Agreement;
(II) the Client's wilful, unlawful or negligent act or omission; or
(III) any act or omission of any of the Client's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement.
(b) The Client hereby indemnifies, keeps indemnified, and holds harmless the Software Provider, as well as any of the Software Provider's employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any third party claims for any losses, injuries, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:
(I) a breach by the Client of this Agreement;
(II) the Client's wilful, unlawful or negligent act or omission; or
(III) any act or omission of any of the Client's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement.
(c) The Client shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, wilful misconduct or bad faith of the Software Provider or of any of the Software Provider's employees, agents, officers, representatives, affiliates, or permitted successors or assigns.
(d) This clause will survive the termination, expiration or completion of this Agreement.
(28) TERMINATION
(a) Either Party may terminate this Agreement with immediate effect in the following circumstances:
(I) the other Party breaches this Agreement, and the breach cannot be remedied;
(II) the other Party breaches this Agreement in a way which is capable of remedy, but the Party in breach does not remedy the breach within 28 days of being notified of the breach;
(III) the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or a duty to perform;
(IV) the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties;
(V) the other Party takes steps to cease carrying on its business;
(VI) the other Party takes steps to enter into an arrangement with its creditors;
(VII) a mortgagee of the other Party takes steps to dispose of or enter into possession of any assets of that other Party, or any part of that other Party's business; or
(VIII) any steps are taken to appoint a liquidator, provisional liquidator, receiver, receiver and manager or trustee in bankruptcy for the whole or any part of the other Party's business.
(b) In the event that the Fees are overdue by 14 days or more, then the Software Provider may terminate this Agreement with immediate effect.
(29) EFFECT OF TERMINATION
(a) Upon termination or expiration of this Agreement:
(I) any unpaid Fees relating to the Client's access to the Product and Services prior to the date of termination will be immediately due and payable;
(II) the Client must immediately stop using the Product, Services and/or Documentation;
(III) the Client must immediately stop using the Intellectual Property;
(IV) the Client will no longer be entitled to access or use the Product, Services, Documentation or Intellectual Property;
(V) the Client must immediately return any copies of the Product, Services and/or Documentation to the Software Provider, destroy them, or follow any other reasonable directions of the Software Provider in relation to those copies of the Product, Services and/or Documentation;
(VI) the Software Provider will terminate the Client's access to the Product, Services and/or Documentation; and
(VII) any data, inputs or other information that the Client has submitted in connection with the Product or Services may be permanently deleted (so the Client should make sure to have backups of any important data, inputs or other information).
(b) Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies that either Party may be entitled to.
(c) Any part of this Agreement which is meant to continue after termination or which is meant to come into force at or after termination shall not be affected by this clause.
(d) This clause will survive the termination, expiration or completion of this Agreement.
(30) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Client at the address nominated by the Client at the time they executed this Agreement, or such other address as nominated by the Client subsequently.
(b) Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Software Provider if delivered to the following address:
15 Gumnut Court, East Albury, NSW 2640
(c) Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.
(31) WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
(I) such notice is properly given if given to the other Party:
(A) by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
(B) by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(C) by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
(II) such notice is taken to be received:
(A) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
(B) if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
(C) if sent by prepaid post within Australia, five (5) days after the date of posting.
(D) if sent by prepaid post to or from an address outside Australia, twenty-one (21) days after the date of posting.
(32) GENERAL PROVISIONS
(a) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of New South Wales and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within New South Wales.
(b) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
(c) CURRENCY: Unless otherwise specifically provided, all monetary amounts contained in this Agreement are in Australian Dollars (AUD).
(d) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have. Unless expressly provided in this Agreement, nothing in this Agreement shall in any way reduce, extinguish, postpone, restrict or otherwise limit any right, remedy or power which that Party may have.
(e) SURVIVAL OF OBLIGATIONS: Notwithstanding any other provisions of this Agreement, at the Termination, expiration or Completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive Termination, expiration or Completion shall remain in full force and effect, including but not limited to any provisions which are explicitly stated to survive Termination, expiration or Completion.
(f) NO WAIVER: None of the powers or rights created under the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. A power or right under the terms of this Agreement may only be waived in writing, signed by the Party that is waiving the said power or right. No waiver of any power or right under a term of this Agreement shall constitute a waiver of any other power or right or of the same power or right on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.
(g) SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.
(h) ENTIRE AGREEMENT: The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement. The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
(i) FORCE MAJEURE/EXCUSE: Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, labour or transportation disputes, and other acts which may be due to unforeseen circumstances.
(j) FURTHER ACTS: Each Party must, and must ensure that its directors, employees, officers, agents, representatives and contractors do all things and sign, execute and deliver all documents, agreements and instruments as reasonably required in order to give effect to this Agreement and to the rights and obligations of the Parties created under this Agreement.
(33) CONTACT US
You can contact us about this Agreement using the following details:
E: info@clublandservices.com
By using the Product and/or the Services, the Client agrees to be bound by the terms set out in this Agreement.
