1. Background
(a) For Future's Sake Pty Ltd ACN 662 521 504 trading as Clubland (we/us/our) provides digital strategy, marketing and hosting services (the Services) and access to the CLUBLAND platform (the Platform) to enable our clients and clubs (you/your) to efficiently manage communications, sales, databases and reporting.
(b) We have agreed to provide the Services and grant you Access to the Platform in accordance with the terms of this Agreement.
2. Acceptance and Term
(a) You are deemed to accept the Agreement, where after receiving a copy of this Agreement you:
(i) sign our Proposal;
(ii) create a Clubland Account to enable you to access and use our Platform;
(iii) accept this Agreement electronically in accordance with clause 2A;
(iv) continue to request Services; or
(v) otherwise indicate to us, whether directly or indirectly, that you accept the Agreement.
(b) Any person that accepts this Agreement on your behalf represents and warrants to us that they are duly authorised to accept this Agreement and to bind you to this Agreement.
(c) This Agreement commences on the Acceptance Date and continues for an initial period of 24 months (Initial Term), unless a different period is specified in our Proposal. Following the Initial Term, this Agreement will automatically renew for successive periods of 12 months (each a Renewal Term). The Initial Term and each Renewal Term reflect the period over which the Services and Access to the Platform are intended to be delivered, and do not limit either party's right to terminate this Agreement in accordance with clause 13.
(d) Either party may propose to review and renegotiate the terms of this Agreement with effect from the end of the Initial Term or any Renewal Term by providing written notice to the other party at least 30 days prior to the end of that period.
2A. Electronic Acceptance and Record Keeping
(a) You may accept this Agreement electronically through our website or Platform by:
(i) clicking an "I Accept", "I Agree", "Create Account", "Sign Up", or similar button; or
(ii) checking a box or boxes indicating acceptance of these Terms.
(b) By accepting electronically, you acknowledge and agree that:
(i) you have read, understood, and agree to be bound by this Agreement;
(ii) electronic acceptance creates a legally binding contract equivalent to a signed written agreement;
(iii) you consent to transacting with us electronically;
(iv) we may send notices, invoices, and documents to you electronically at the email address you provide.
(c) We will maintain electronic records of:
(i) the date and time of your acceptance;
(ii) the version of the Agreement you accepted;
(iii) the method of acceptance;
(iv) your IP address and device information at time of acceptance.
(d) You may request a copy of this Agreement at any time by contacting support@clubland.net.au.
(e) This Agreement complies with the Electronic Transactions Act 1999 (Cth) and any applicable state or territory electronic transactions legislation.
3. Proposal
(a) Our Proposal may take different forms and may also be made up of separate parts, which are to be taken as joined and to form one single document and will collectively form the Agreement.
(b) Our Proposal will, among other things, set out the scope of the Services to be provided, include any details on the supply of the Services and include the terms of payment for the Services and Access to the Platform.
(c) You must tell us immediately if you disagree with anything contained in our Proposal or if you think we have misunderstood your requirements.
(d) If there is any inconsistency between these Terms and the Proposal, the Proposal will prevail to the extent of that inconsistency.
4. Variations
Either party may request variations to the Services at any time. If both parties agree to the variation in writing, then the Proposal will be deemed to be updated to reflect the change and will vary the Agreement.
5. Supply of Services
5.1 Services
We will provide the Services to you as specified in our Proposal or agreed between the parties from time to time which may include:
(a) website and online store creation;
(b) server hosting;
(c) reporting and analytics;
(d) digital infrastructure;
(e) content management support;
(f) statistical management support;
(g) technical and training support;
(h) sponsor advertisement management and support;
(i) uploading news content, season fixtures and weekly team lists; and
(j) creating player profile pages.
5.2 Our obligations
We will provide the Services to you:
(a) in a professional manner with due care, skill and diligence;
(b) in accordance with all Laws and applicable regulations and codes in Australia; and
(c) in accordance with this Agreement.
5.3 Your obligations
(a) To enable us to perform the Services in accordance with this Agreement, you must promptly provide us with:
(i) all reasonable information, assistance, data, resources, records and materials required for the delivery of the Services; and
(ii) access to Personnel within your organisation that we need to interact with.
(b) During our engagement, you agree to:
(i) actively promote the Platform as the main broadcast communication channel and source of club-related information;
(ii) source content for the Platform including news, advertising partners, player profiles photos, photography and videography;
(iii) provide access to video content and game data to us; and
(iv) ensure that you are authorised to provide us with all third-party statistical data, video content and branding material that you wish to be displayed on the Platform.
6. Clubland Platform
In addition to the provision of the Services, you will be provided with Access to the Platform in accordance with this clause 6.
6.1 Access to Platform
(a) We grant you the Licence during the Term to Access the Platform on the following conditions:
(i) you must only Access and use the Platform in accordance with the provisions of this Agreement;
(ii) you must comply with all reasonable and lawful directions that we may give from time to time with respect to your use of and Access to the Platform;
(iii) you must cooperate with us in the remediation of any security, unauthorised use or misuse of the Platform and promptly report to us all such matters that you become aware of;
(iv) you must only use the Platform for the intended purpose of this Agreement;
(v) you must protect all our Intellectual Property Rights as set out in clause 8;
(vi) you must not be involved in any business activity that is unlawful or that we reasonably consider would be likely to adversely impact upon our reputation;
(vii) you must not allow or engage any third party to conduct work on or relating to the Platform without first obtaining our written consent;
(viii) you must not interfere with or disrupt the operation of the Platform nor attempt to do so;
(ix) you must not grant Access to the Platform to anyone other than your Personnel;
(x) subject to any right under, sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly, copy, reproduce, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform; and
(xi) you must procure that all of your Personnel strictly comply with conditions 6.1(a) – 6.1(a)(x).
6.2 Updates
(a) We may, from time to time:
(i) update the Platform or any part of it; and
(ii) make modifications to the Platform (provided such variations do not limit your rights under this Agreement).
(b) We will endeavour to provide you with notice of any material changes made to the Platform prior to the changes taking effect.
(c) Any new services which become available under 6.2(a), will be governed by the terms of this Agreement.
6.3 Support
(a) We will use our best endeavours to provide support services in relation to the Platform to you within 2 Business Days of a request being made. Support services provided under this Agreement do not include support dealings with or responding to issues related to your IT Systems.
(b) You are solely responsible for obtaining and maintaining all of your IT Systems needed to connect to, Access or use the Platform.
6.4 Clubland Account
(a) You must and must procure that each of your Personnel and Members:
(i) properly establishes an Account before being granted Access to the Platform;
(ii) refrains from transferring an Account to any other person;
(iii) does not create an Account on behalf of any other person, or provide false or misleading information when establishing an Account;
(iv) maintains the security of their password and any other information that would enable access to their Account;
(v) notify us immediately in the event of any known or suspected unauthorised use of an Account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of a password; and
(vi) take the necessary steps to prevent the continuance of any unauthorised use of an Account by contacting us to change login details and other account security information.
(b) You acknowledge accessing and using the Platform requires proper Account establishment. If this does not occur:
(i) the Services may not be able to be provided, or they are provided the Service deliverables may be adversely affected; and
(ii) we will not be liable to you for any Loss suffered due to the Platform not being available or the Service deliverables being adversely affected.
6.5 Advertisements
(a) We may, with your prior written permission and arrangement, engage third-party advertisers to be hosted on the Platform in respect of your club or website. You retain the right to approve or reject any proposed advertisement before it is displayed on the Platform.
(b) All advertisements and placement within the Platform will be subject to your approval. We will only display advertising materials on the Platform that you have approved in writing and that:
(i) are not obscene or offensive;
(ii) do not contain any materials relating to gambling; or
(iii) will not otherwise negatively impact the reputation of the club.
6.6 Third-Party Data Sources and Access
(a) You acknowledge and agree that as part of the Services, we may access third-party platforms, databases, and data sources to obtain, collect, and integrate data related to your club into the Platform, including but not limited to game statistics, player data, fixture information, league data, team rosters, and other sports-related content (Third-Party Data).
(b) You acknowledge and agree that:
(i) the Third-Party Data accessed by us from third-party sources belongs to you or relates to your club's activities;
(ii) by entering into this Agreement, you authorise and grant us permission to access, retrieve, copy, and use Third-Party Data from any third-party platforms or databases where your club's data is stored or published;
(iii) you are responsible for ensuring that your club has the necessary rights and permissions under any agreements with third-party platform providers to allow us to access and use Third-Party Data;
(iv) you will notify us immediately if your permission or rights to access Third-Party Data from any third-party source are revoked, suspended, or restricted; and (v) you grant us a licence to store, process, display, and integrate Third-Party Data into the Platform for the duration of this Agreement.
(c) You acknowledge and agree that:
(i) third-party platforms and data sources are operated and controlled by third parties independent of us;
(ii) third-party platforms may change their data formats, access methods, availability, or functionality at any time without notice to us;
(iii) third-party platforms may experience downtime, errors, performance issues, or disruptions that are beyond our control;
(iv) Third-Party Data may be incomplete, inaccurate, delayed, or unavailable from time to time due to factors beyond our control; and (v) we are dependent on third-party platforms maintaining their systems and making data available.
(d) To the extent permitted by Law, we are not liable for:
(i) any unavailability, disruption, or poor performance of the Platform or Services caused by third-party platform failures, limitations, changes, or access restrictions;
(ii) any inaccuracies, errors, omissions, or delays in Third-Party Data;
(iii) any changes to third-party platform data formats or structures that affect our ability to integrate data;
(iv) any suspension or restriction of access to Third-Party Data by third-party platform providers;
(v) any Loss arising from your failure to maintain the necessary rights or permissions for us to access Third-Party Data; or (vi) any Loss arising from incomplete or inaccurate data entered into third-party platforms by you, your Personnel, or third parties.
(e) You represent and warrant that:
(i) you have the authority to grant us access to Third-Party Data;
(ii) our access to and use of Third-Party Data as contemplated by this Agreement does not and will not breach any agreement you have with third-party platform providers;
(iii) you have complied and will continue to comply with all applicable terms of service, privacy policies, and usage restrictions of third-party platforms; and
(iv) all data you provide or make available to third-party platforms is accurate, complete, and lawfully provided.
(f) You indemnify us against any Loss arising from:
(i) any claim by a third-party platform provider that our access to or use of Third-Party Data breaches their terms of service or policies;
(ii) your breach of any third-party platform provider's terms of service, privacy policies, or usage restrictions;
(iii) your failure to maintain the necessary rights, permissions, or authorisations for us to access Third-Party Data; or (iv) any claim that Third-Party Data infringes the rights of any person or violates any Law.
(g) We will use commercially reasonable efforts to:
(i) access third-party platforms in a manner that complies with applicable terms of service and usage policies;
(ii) implement appropriate security measures to protect Third-Party Data;
(iii) notify you of any material issues or disruptions with third-party data access that come to our attention; and
(iv) work with you to identify alternative data sources or solutions where reasonably practicable.
(h) If access to Third-Party Data from any third-party platform becomes unavailable, restricted, or commercially impracticable due to technical limitations, changes by the third-party provider, or other factors beyond our reasonable control, we may suspend the affected features or Services without liability, and will work with you to identify alternative solutions where available.
7. Fees, charges and payments
7.1 Fees and charges
(a) In consideration for the Services and Access to the Platform, you agree to pay us the Fees as specified in our Fee Schedule.
(b) Unless otherwise specified in our proposal, Fees will be payable:
(i) in advance of provision of the Services; or
(ii) invoiced to you for each calendar month that we provide Services.
(c) You acknowledge and agree that we may reasonably vary our Fees from time to time via provision of a revised Fee Schedule to you. Where we vary Fees, we will provide you with at least thirty days' notice.
(d) For monthly subscription Services:
(i) your first payment will be processed on the Acceptance Date or as otherwise specified during account creation;
(ii) subsequent payments will be automatically charged on the same calendar day each month (or the last day of the month if your Acceptance Date falls on a day that does not exist in all months, such as the 31st);
(iii) you authorise us to charge your nominated payment method automatically for each billing period;
(iv) you are responsible for ensuring your payment method remains valid and has sufficient funds;
(v) your subscription will continue, and Fees will be charged for each billing period, throughout the Initial Term and each Renewal Term, until this Agreement is terminated in accordance with clause 13;
(vi) we will send you email notification of each successful payment and provide a Tax Invoice;
(vii) all Fees are non-refundable except as required by Law.
(e) You may update your payment method at any time through your Account settings or by contacting accounts@clubland.net.au.
7.2 Advertising Revenue
Where we have specified in our Proposal, you agree that in consideration for the Services and Access to the Platform, you will retain all of the revenue generated through third-party advertisements hosted on the Platform, including in connection with your website.
7.3 Payment
(a) You must pay us all amounts outlined in our invoice in the manner reasonably nominated without set-off, counter-claim, holding or deduction.
(b) We will issue a Tax Invoice to you upon your payment being processed.
7.4 Declined payment
If you fail to make payment of all amounts rightfully due and owing to us in accordance with this Agreement, we may:
(a) immediately suspend Access to the Platform and the Deliverables;
(b) charge you for all costs and expenses incurred by us in recovering our outstanding Fees from you, including legal fees (on a solicitor and own client basis) and court costs, which you agree to pay upon demand.
7.4A Payment Method Failure and Retry Process
(a) If your nominated payment method is declined, fails, or expires:
(i) we will immediately send you email notification requesting you update your payment details;
(ii) we will attempt to process payment again after 3 days and again after 7 days;
(iii) you have 10 Business Days from the original payment due date to provide a valid payment method and clear the outstanding amount;
(iv) interest may accrue on overdue amounts at the Default Rate.
(b) If payment is not received within 10 Business Days:
(i) we may suspend your Access to the Platform and Deliverables in accordance with clause 7.4;
(ii) suspension does not relieve you of your obligation to pay all outstanding Fees;
(iii) we may charge a $25 administration fee for payment failure and account suspension (if applicable).
(c) To restore Access following suspension for non-payment:
(i) you must pay all outstanding Fees, including any accrued interest and administration fees;
(ii) you must provide a valid payment method;
(iii) we will restore Access within 2 Business Days of receiving cleared payment.
(d) We reserve the right to terminate this Agreement in accordance with clause 13.2 if payment issues are not resolved within 30 days of the original due date.
7.5 GST
Unless otherwise expressly stated, all amounts under this Agreement are exclusive of GST. If GST is imposed on any supply made under or in connection with this Agreement and GST has not been accounted for in determining the consideration payable, we may recover the GST amount from you.
8. Intellectual Property Rights
8.1 Background IP
(a) Nothing in this Agreement transfers intellectual property belonging to a party that was created prior to the parties entering this Agreement, including existing graphic design materials, software code or videos and photographs (Background IP).
(b) You grant us a licence to use the Background IP provided by you for the purpose of us providing the Services and implementing the Platform according to this Agreement, including the right to use, reproduce, modify and create derivative works of the Background IP for that purpose.
(c) You acknowledge and agree that we are not required to provide you with any Background IP.
8.2 Third Party Intellectual Property Rights
(a) We will only independently incorporate Third Party Intellectual Property Rights in the Deliverables where the limitations and conditions relating to use of such Intellectual Property Rights will not interfere with your anticipated use of the Deliverables.
(b) We will provide you with notice where use of any Third Party Intellectual Property Rights is subject to third party ownership, conditions or limitations that you were not aware of.
(c) You must ensure that we are permitted to use any third-party information or Intellectual Property Rights in any materials that you provide to us for use in the provision of our Services and the creation of Deliverables.
8.3 Platform Intellectual Property Rights
(a) We own all Intellectual Property Rights in the Platform, including any improvements or updates to the Platform implemented during the Term.
(b) For the avoidance of doubt, nothing in this Agreement prohibits us from using our Intellectual Property Rights to provide services or deliverables to third parties, even if such services or deliverables are the same or substantially the same as those provided to you.
8.4 Deliverable Intellectual Property Rights
(a) We own all Intellectual Property Rights in the Deliverables, excluding any Third Party Intellectual Property Rights. In the event of termination or cessation of our service and support arrangement, the website and clubhouse in its current form will transfer to and remain with you. The site will no longer be updated by our service and support team following such termination.
(b) For clarity, our Intellectual Property Rights extend to data feeds and integration methods but do not include the underlying data itself, which remains the property of or the original source from which it was obtained.
8.5 Moral Rights
Where we have provided you with a licence to the Deliverables, we irrevocably consent, as the author, to any acts or omissions of any person, including you, in connection with the relevant Deliverables after the date of the licence, which might otherwise infringe our moral rights, provided such actions are strictly in line with the purposes for which the works were created.
9. Data protection
9.1 Data
(a) We will collect, use, store and disclose Data and Personal Information in accordance with our Privacy Policy.
(b) You acknowledge that in order to utilise the Platform, the Data must conform to any Data Requirements we prescribe.
(c) You acknowledge and agree that we may collect Third-Party Data from third-party platforms and APIs in accordance with clause 6.6, and that we are not responsible for the quality, accuracy, completeness, or availability of Third-Party Data provided by third-party service providers.
(d) All title to your Data remains with you in all respects and we do not obtain ownership of any Intellectual Property Rights in such Data. However, you grant to us a licence to hold, use, store and disclose all Data that you provide for the purposes of fulfilling our obligations under this Agreement or facilitating the Platform.
(e) You acknowledge and agree that you are responsible for maintaining all of Data and Deliverables within the Platform, as well as maintaining back-ups of all Background IP provided to us during the Term or used prior to our engagement.
9.2 Use of Data
(a) We take reasonable steps to protect your Data from:
(i) misuse, interference and loss; and
(ii) unauthorised access, modification or disclosure, by adopting commercially appropriate technological protection measures to protect our computer systems and networks for storing, processing and transmitting Data.
(b) Notwithstanding that we use our best endeavours to protect your Data we collect and hold, you acknowledge and agree that we cannot guarantee the complete security of the Data and make no representation or warranty that your Data will be free from corruption, leak, hack or disclosure as a consequence of the actions of a nefarious actor.
(c) You agree, and must procure your Members to agree, that we may store copies of the Data, including Personal Information provided by you on our servers and to deal with the Data as directed by you.
9.3 Artificial Intelligence and Public Display of Data
(a) You acknowledge and agree that the Platform may incorporate artificial intelligence (AI) features and tools to enhance user experience, generate insights, automate processes, or provide content recommendations.
(b) You acknowledge and agree that:
(i) Data, content, and information uploaded to or processed through the Platform (including but not limited to news articles, player profiles, team statistics, photographs, videos, and other club-related content) may be: (A) processed by AI systems to generate summaries, insights, recommendations, or other derivative content; (B) used to train or improve AI models operated by us or our service providers; and (C) displayed publicly on the Platform, on associated mobile applications, or through other digital channels as part of the Services.
(ii) Such AI processing and public display is an integral part of the Digital Clubhouse features and Services provided under this Agreement.
(iii) You are responsible for ensuring that you have obtained all necessary consents, permissions, and rights (including from Members, players, coaches, staff, and any other individuals whose Personal Information or images may be included in the Data) to allow for such AI processing and public display.
(c) You must not upload, provide, or authorise the Platform to access any Data or Personal Information unless you have:
(i) obtained all necessary consents from the relevant individuals for such Data to be: (A) processed by AI systems (including for the purposes of analysis, content generation, and model training); and (B) displayed publicly on the Platform and associated channels;
(ii) ensured that such AI processing and public display complies with all applicable Privacy Laws; and
(iii) informed the relevant individuals that their Data may be used in this manner.
(d) We will implement reasonable technical and organisational measures to:
(i) ensure AI processing is conducted in a manner consistent with applicable Privacy Laws;
(ii) maintain appropriate security safeguards for Data processed by AI systems; and
(iii) provide you with reasonable notice of material changes to how AI systems are used in connection with the Platform.
(e) You agree to indemnify and keep us indemnified against any Loss arising from:
(i) any claim that AI processing or public display of Data violates the rights of any individual or entity;
(ii) your failure to obtain necessary consents for AI processing or public display of Data; or
(iii) your breach of any representation, warranty, or obligation in this clause 9.3.
(f) For the avoidance of doubt, this clause 9.3 supplements but does not replace any other data protection, privacy, or intellectual property obligations set out in this Agreement.
9.4 Data Export and Portability
(a) During the Term, you may request an export of your Data at any time by contacting enquiries@clubland.net.au. We will provide the Data export within 10 Business Days in a commonly used, machine-readable format (such as CSV, JSON, or XML). (b) Upon termination of this Agreement:
(i) you have 30 days from the termination date to request a final Data export;
(ii) we will provide one complimentary Data export in accordance with clause 9.4(a);
(iii) additional Data exports requested during the 30-day period may be subject to an administration fee at our then-current hourly rates.
(c) After 30 days following termination:
(i) we may permanently delete all Data, Deliverables, and Account information;
(ii) we have no obligation to retain or provide access to any Data;
(iii) you acknowledge that Data deletion is irreversible.
(d) Data exports do not include:
(i) our proprietary Platform code or algorithms;
(ii) Third-Party Data that we do not have rights to transfer;
(iii) system logs or metadata not directly related to your club's operations.
(e) You acknowledge that Data exports may not include all formatting, layouts, or presentation elements that exist within the Platform, and that exported Data may require technical knowledge to import into other systems.
(f) Nothing in this clause 9.4 affects our rights to retain Data where required by Law, including for taxation, audit, or legal compliance purposes.
10. Warranties
You represent and warrant that:
(a) you own or have an unrestricted right to use all Data that is migrated to the Platform or otherwise provided to us;
(b) all Personal Information or Data as contemplated by any applicable Privacy Law that you provide to us under this Agreement has been collected by you and provided to us in accordance with the relevant and applicable Privacy Laws;
(c) you have obtained the consent of Members to disclose Member Data to us for the purposes of this Agreement, ensure this consent is ongoing during the Term, and that our use of such Personal Information or Data in the provision of Services through the Platform will not cause us to breach any applicable Privacy Laws;
(d) you have the capacity and authority to enter this Agreement and to perform all your obligations under it; and
(e) the terms of this Agreement have been accepted by you or by a duly authorised representative of yours and accordingly the terms of this Agreement legally bind you.
(f) where your use of the Platform involves the collection, display, or processing of Personal Information about Members (including minors), you represent and warrant that:
(i) you have obtained all necessary consents from Members (or their parents/guardians where Members are under 18 years) for:
(a) collection and storage of their Personal Information;
(b) display of their Personal Information on the Platform and in associated public-facing channels;
(c) processing of their Personal Information by AI systems as described in clause 9.3;
(d) access to their Personal Information by third-party data sources as described in clause 6.6;
(ii) such consents are current, valid, and comply with all applicable Privacy Laws;
(iii) you have informed Members about:
(a) what Personal Information will be collected;
(b) how it will be used and displayed;
(c) their rights to access, correct, or request deletion of their Personal Information;
(d) how to withdraw consent;
(iv) you maintain records of all consents obtained;
(v) you will immediately notify us if any Member withdraws consent or requests deletion of their Personal Information.
(h) You acknowledge that failure to obtain proper consents may result in breaches of Privacy Laws for which you will be solely responsible.
11. Acknowledgements
You acknowledge and agree that we have not made any representations or warranties that the Platform will be error free or available at all times without interruption.
12. Confidentiality
12.1 Keep confidential
Each party must:
(a) keep confidential all Confidential Information; and
(b) only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
(c) procure that its Personnel comply with sub-clauses (a) and (b).
12.2 Disclosure exceptions
The obligations in clause 12.1 do not apply:
(a) to the extent necessary to enable a party to make any disclosure required by Law;
(b) to the extent necessary to enable a party to perform its obligations under this Agreement;
(c) provided a third party receiving the Confidential Information has obligations of confidentiality equivalent to those contained in this clause 12 and only in circumstances where:
(i) disclosure is required for any quality assurance or insurance purposes; or
(ii) necessary to receive professional legal or financial advice; or
(d) to any disclosure agreed in writing between the parties.
13. Termination
13.1 Termination by notice
(a) Either party may terminate this Agreement at any time, including during the Initial Term or any Renewal Term, by forty-five (45) days written notice to the other (Termination Notice).
(b) You may terminate this Agreement by notice to us where you do not agree with a proposed Fee increase by us pursuant to clause 7.1(c).
(c) Notice provided in accordance with clause 13.1(b) must be given at least fourteen (14) days prior to, and becomes effective from, the date the proposed Fee increase is to take effect.
13.2 Termination for breach
(a) If either party breaches any provision of this Agreement and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 10 Business Days (Breach Notice).
(b) You acknowledge that while a Breach Notice is in effect, we may at our discretion, suspend Access to your Account until the breach is rectified.
(c) If a breach has not been rectified within 10 Business Days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.
(d) If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this Agreement immediately by notice in writing to the party in breach.
13.3 Effect of termination
(a) Upon termination or expiry of this Agreement:
(i) you must pay all outstanding Fees and any other payments due to us under or in connection with this Agreement;
(ii) we must return or delete all of your Confidential Information that has been provided to us or accessed by us under or in connection with this Agreement except for one copy where required for quality assurance or insurance purposes; and
(iii) any accrued rights or liabilities of a party will not be affected.
(b) Upon termination or expiry of this Agreement, we will no longer host your website on the Platform and your Access to the Platform will be cancelled.
(c) We may at your request reinstate your website which was in use prior to our engagement under this Agreement for an additional fee at our then prevailing hourly rate, including updating the website with content and Deliverables created during the Term.
14. Liability
(a) Neither party will be liable to the other whether in contract, tort (including negligence) or otherwise in connection with the Agreement, for loss or damage to the extent that the other party (or the other party's Personnel) contributed to the loss or damage.
(b) Subject to clause 14(d), neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party whether in contract, equity, tort (including negligence) or otherwise in connection with the Agreement even where the other party were appraised of the likelihood of such Loss occurring.
(c) Subject to clause 14(d), our maximum liability to you, whether in contract, equity, tort (including negligence) or otherwise in connection with the Agreement (including under an indemnity), is limited to the aggregate of our Fees paid by you during the 12 months preceding the claim.
(d) The exclusions and limitations of liability in clauses 14(b) and 14(c) do not apply to liability in relation to:
(i) personal injury, including sickness and death;
(ii) loss of, or damage to, tangible property;
(iii) an infringement of a third party's Intellectual Property Rights or Moral Rights;
(iv) any fraudulent act or omission of ours or that of our Personnel; or
(v) any breach by us or our Personnel of any of our confidentiality obligations under clause 12.
(e) A party who suffers Loss must use reasonable steps to mitigate its Loss. The other party will not be responsible for any Loss to the extent that the injured party could have avoided or reduced the amount of the Loss by taking reasonable steps to mitigate its Loss.
(f) Subject to sub clause (g), any condition, guarantee or warranty which would otherwise be implied in this Agreement is excluded.
(g) Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the payment of the cost of having the Services supplied again.
15. Notices
Any notice given under or in connection with this Agreement:
(a) must be in legible writing and in English;
(b) must be delivered to a party's contact address as specified in the Proposal or as otherwise notified by a party to the other party from time to time;
(c) will be deemed to be received by the addressee:
(i) if delivered by hand, at the time of delivery;
(ii) if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting; or
(iii) if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).
16. Assignment
Subject to this clause 16, a party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
17. General matters
17.1 Essential terms
Clauses 5.2, 5.3, 8, 9, and 10 are essential terms of this Agreement.
17.2 Survival
Clauses 9, 12, 13.3, 14, and 15 are taken to survive this Agreement.
17.3 Force majeure
Neither party will be liable for any delay or failure to perform its obligations under or pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, performance of that party's obligations will be suspended for the duration of the Force Majeure event.
17.4 Consents
Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.
17.5 Entire Agreement
This Agreement contains the entire agreement between the parties about the subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
17.6 Further acts
Each party must promptly do all further acts and execute and deliver all further documents required by Law or reasonably requested by another party to give effect to this Agreement.
17.7 Jurisdiction
This Agreement is governed by the law in force in the State of Queensland and each party consents to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this Agreement.
18. Definitions and interpretation
18.1 Definitions
In this Agreement: Access means provide you with access to an operational, fully functioning version of the Platform. Acceptance Date means the date the Agreement is accepted by you or on your behalf under clause 2. Account means an account within the Platform which is required for Access to the Platform and for us to authenticate and authorise use of the Platform. Agreement means together our Proposal, this document and any schedules or annexures to it or contained by it. Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth). Business Day means a day that is not a Saturday, Sunday or any other day that is a public holiday or bank holiday in the place where an act is to be performed or a payment is to be made. Claim includes a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent. Member means a person that is a member of your club or an associated entity. Member Data means all information relating to a Subscriber, Member, including Personal Information, that has been migrated or uploaded into the Platform. Confidential Information means information that is by its nature confidential, or is designated by a party as confidential, or that a party knows or ought to know is confidential, other than information which is or becomes public knowledge otherwise than by breach of this Agreement or any other confidentiality obligation. Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage. Copyright Act means the Copyright Act 1968 (Cth). Corporations Act means the Corporations Act 2001 (Cth). Data means all information relating to your club or business that you have inputted or uploaded into the Platform or directed the Platform to obtain, including Member Data. Data Requirements means our directives (from time to time) that define the content and structure of the Data (including as to the quality, integrity and format of data) required in order to effectively load the Data into the Platform. Default Rate means 10% per annum accruing from and including the date that payment is one day overdue and ceasing to accrue on the date we receive payment in full of all overdue Fees and any amounts rightfully due and owing to it under the Agreement. Deliverables means any content generated by the Platform including your website, reports and analytics, as specified in our Proposal. Fees mean the fees payable to us under this Agreement calculated in accordance with the Fee Schedule. Fee Schedule means the rates and calculation methodology for determining the Fees as provided in our Proposal or agreed by the parties from time to time. Force Majeure means any cause beyond the reasonable control of a party and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, including an act of God, fire, earthquake, storm or flood, and the failure of third-party equipment, software, technology or other services necessary for the performance of a party's obligations under this Agreement. Initial Term has the meaning given in clause 2(c). Intellectual Property Rights include:
(a) patents, designs, trademarks and service marks (whether registered or unregistered) and any applications for, or rights to apply for, registration of any patent, design, trade mark or service mark;
(b) copyright (including copyright in software, websites, databases and advertising and other promotional materials);
(c) all rights to have information (including trade secrets, know how, operating procedures and technical information) kept confidential; and
(d) all other rights or protections having similar effect anywhere in the world, whether created before or after the date of the Agreement but excludes Moral Rights. IT Systems means all computer firmware, middleware, protocols and other computer programs and all computer hardware, peripheral equipment, networks, communications systems and other equipment of whatever nature, used within your business or club. Law includes any requirement of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise. Licence means a revocable, worldwide, non-exclusive and non-transferable licence to Access and use the Platform. Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable. Members means the members of your club who create an Account. Moral Rights means moral rights as defined in the Copyright Act. Personal Information means information or opinion about an identified individual such as their address and contact details and can include sensitive information such as health records. Personnel means officers, directors, employees, agents and contractors. Platform means the Clubland website software and mobile application as available from time to time. Privacy Law means the Privacy Act 1988 (Cth) and other relevant privacy legislation. Renewal Term has the meaning given in clause 2(c). Services means the services to be provided by us which are ancillary to your use of the Platform. Tax Invoice means an invoice issued by us for payments required under this Agreement. Term means the Initial Term together with each Renewal Term, commencing on the Acceptance Date, or such other period as is specified in the Proposal. Third-Party Intellectual Property Rights means any intellectual property incorporated in the delivery of our Services owned by a third-party to this Agreement, including works which are subject to a commercial licence for our use. Third-Party Data means data obtained by us from third-party application programming interfaces (APIs) and external data sources on your behalf, including game statistics, player data, fixture information, league data, and other sports-related content, as described in clause 6.6.
18.2 Interpretation
Unless it is expressly stated that a different rule of interpretation will apply:
(a) a reference to an agreement includes any variation or replacement of the agreement;
(b) if the due date for any obligation is not a Business Day, the due date will be the next Business Day;
(c) all currency amounts are in Australian dollars;
(d) headings are provided for convenience and do not affect the interpretation of the documents making up the Agreement;
(e) "include", "includes" and "including" must be read as if followed by the words "without limitation";
(f) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(g) agreements, representations and warranties made by two or more people will bind them jointly and severally;
(h) a reference to any legislation includes any consolidation, amendment, re-enactment or replacement of legislation;
(i) a person includes the person's executors, administrators and permitted novatees and assignees;
(j) no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it;
(k) if any part of the Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the Agreement will not apply but the other parts of the Agreement will not be affected.
END OF TERMS