5. Restrictions on use of Licensed Software

5.1  Customer obligations

The Customer agrees that:

(a)  it may only install and use the Licensed Software for the Purpose and must not rent, lease, loan, re-sell, transfer, sub-license, distribute, disclose or otherwise provide the Licensed Software to any third party unless otherwise permitted by the Company in writing;

(b)  it must not reproduce, modify, adapt or create derivative works or decompile, disassemble or reverse-engineer the Licensed Software, or determine (or attempt to determine) any source code, API, algorithms, methods or techniques embodied in the Licensed Software;

(c)  it must not alter, remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from the Licensed Software, including any third party proprietary legends or notices (if any);

(d)  it will use reasonable efforts to prevent unauthorised third parties from accessing the Licensed Software and will store all Security Details securely;

(e)  it must not use, or permit any use of, the Licensed Software in a way which is unacceptable.  Use is unacceptable if it:

(i)  is any use of the Licensed Software which is not for the Purpose;

(ii)  involves anything which is false, defamatory, harassing or obscene;

(iii)  involves unsolicited electronic messages;

(iv)  would involve the contravention of any person’s rights;

(v)  would cause the Company to be in breach of any licences (if any) granted by any third party to the Company to distribute the Licensed Software;

(vi)  may offend or breach any laws; or

(vii)  may otherwise be regarded by the Company, on reasonable grounds, to be unacceptable (the Company may from time to time notify the Customer of the circumstances which the Company regards as unacceptable).

(f)  it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all Customer Data. The Customer also agrees that there are limitations to the ability of the Licensed Software to assist in the Customer’s business and that the Licensed Software will not detect faulty Customer Data, do not take into account all of the matters that should be considered in decision making regarding matters of relevance to the Customer’s business and should not be used as a substitute for the Customer’s independent and appropriately qualified decisions regarding matters relevant to the Customer’s business;

(g)  Authorised Users are responsible for ensuring that their Security Details are kept confidential. If an Authorised User suspects that their Security Details may no longer be confidential or there may have been unauthorised use of their Security Details, they must notify the Company immediately and the Company may provide the Authorised User with new Security Details. Where the Company provides an Authorised User with new Security Details, the Company reserves the right to invalidate any further use of the r Licensed Software which attempts to utilise the previous Security Details of the Authorised User;

(h)  any information made available via the Licensed Software, including any recommendations, statements and opinions accessed via the Licensed Software, whether published by the Company or any other user of the Licensed Software is for general information purposes only. Any reliance the Customer places on this information is at the Customer’s own risk;

(i)  the Customer will not create or permit to exist a security interest over the Licensed Software, or Documentation or in any modifications to, or enhancements, updates or new releases of, the Licensed Software, or Documentation. For the purposes of the foregoing, "security interest" means a security interest that is subject to the Personal Property Securities Act 2009 (Cth) or any other mortgage, pledge, lien, charge or other arrangement of any kind which in substance secures the payment of money or the performance of any obligation, or that gives a creditor priority over unsecured creditors; and

(j)  the Company is not liable to the Customer or anyone else if interference with or damage to the Customer’s computer systems or devices occurs in connection with the Customer’s use of the Licensed Software.

5.2  Suspension

The Customer agrees that the Company may immediately suspend all or any part of the Licensed Software and remove or disable access to anything that contravenes the restrictions in clause 5.1 above. The Company may reinstate access to disabled parts of the Licensed Software once any contravention (including any unacceptable use) has been remedied.

5.3  Minimum Technical Requirements

(i)  The Customer is solely responsible for ensuring that the Minimum Technical Requirements, which are required for the Licensed Software to operate as intended are met.

(ii)  The Customer agrees and acknowledges that the Customer’s right to install and use any third party products specified in the Minimum Technical Requirements, is governed by the terms of the relevant third party licence or service agreement and not by this Agreement. Title to such third party products remains with the applicable licensor or owner. The Customer must ensure that it complies with the terms of any relevant third party licence or service agreement.

5.4  Third party open source software

The Customer acknowledges that any third party open source software provided within or contained in the Licensed Software is provided “as is” and without warranty of any kind.

5.5  Patches and upgrades

The Customer must accept all patches, bugs, fixes, maintenance and service packs (collectively, Patches) necessary for the proper function and security of the Licensed Software, as and when such Patches are generally released by the Company. The Customer must also accept any general updates or upgrades of the Licensed Software as made available by the Company in its discretion, at no additional charge to the Customer.

5.6  Hardware and infrastructure

The Customer acknowledges that the services provided by the Company do not include maintenance of the Customer’s hardware, infrastructure or software not supplied by the Company as part of the Licensed Software.

5.7  Indemnity

(a)  The Customer indemnifies and holds the Company harmless against any loss or liability suffered or incurred by the Company or its Representatives arising from or in connection with:

(i)  any breach of law or third party Intellectual Property Rights by the Customer, its Representatives or any Patrons;

(ii)  any information provided by the Customer (or any of its Representatives) to the Company (including information provided to the Customer by its Patrons) being misleading or incorrect;

(iii)  the negligent act or omission or wilful misconduct of the Customer or its Representatives; or

(iv) any claim made by or on behalf of a Patron of the Customer.

(b)  The Customer is not liable under this indemnity to the extent any claim arises from the Company’s breach of this Agreement.

(c)  The indemnities in this clause survive termination of this Agreement.

6.  Support Services

The Company will provide to the Customer the following Support Services (as applicable):

(a)  Level 2 and 3 explanations and instructions in relation to problems encountered by the Customer that can’t be resolved by the Customer or Clubs NSW  during the normal and intended use and operation of the Licensed Software; and

(b)  access to a help desk support phone number (1300 944 140), a support customer portal (support@cherryhub.com.au) and a knowledge base with regularly updated written articles and how-to videos.

7.  Fees and payment

7.1  Subscription Fees

(a)  In consideration for granting the Licence or the right to use the Licensed Software, the Customer will pay the Company the Subscription Fees in accordance with the Payment Terms.

(b)  The Subscription Fees may be subject to review after the end of the Initial Period. The Company will provide the Customer with reasonable notice of any changes to the Subscription Fees before the changes take effect.

7.2  Certain taxes

All amounts payable to the Company under this Agreement are exclusive of, and the Customer must pay and indemnify the Company against, all sale/use, gross receipts, value-added, GST, personal property or other taxes (including interest and penalties imposed thereon) on the transactions contemplated in this Agreement, other than taxes based on the net income or profits of the Company.

8.  Intellectual Property Rights

8.1  Ownership and use of Intellectual Property Rights

(a)  Except as provided in clause 4.1, nothing in this Agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.

(b)  The Company expressly reserves all rights in the Licensed Software, and the Documentation not specifically granted to the Customer under this Agreement. The parties acknowledge and agree that:

(i)  as between the Company and the Customer, all rights (including Intellectual Property Rights), title and interest in the Licensed Software, and Documentation will remain with the Company; and

(ii)  the Licensed Software are provided on a subscription basis for the duration of the Term of an Order, and are not “sold” to the Customer.

(c)  The Customer acknowledges that Intellectual Property Rights in the Licensed Software,  and the Documentation are, as between the parties, the Confidential Information of the Company.

8.2   Customer Data

The Company acknowledges that the Customer is the owner of any Intellectual Property Rights in the Customer Data.

8.3  Company’s warranties

(a)  The Company warrants that:

(i)  it has the right to grant the Licence and provide the  subscription to the Customer in accordance with this Agreement;

(ii)  the Licensed Software will materially comply with the Specifications when used in accordance with the Documentation and this Agreement; and

(iii)  to its knowledge, neither the Licensed Software nor the use of the Licensed Software by the Customer as contemplated by this Agreement infringes, violates or misappropriates any Intellectual Property Rights of any third party.

(b)  Except as expressly set out in clause 8.3(a), the Licensed Software,  the Documentation and other deliverables under this Agreement are provided “as is” and, to the maximum extent permitted by law, without any express or implied warranty, guarantee or other assurance of quality, accuracy, integration, merchantability, fitness for a particular purpose, conformity with specifications, reliability or functionality. Without limitation of the generality of the foregoing, the Company does not warrant that:

(i)     use of the Licensed Software will be uninterrupted, error-free or secure, or that all defects will be corrected;

(ii)    the Licensed Software will meet the Customer’s requirements or provide desired results; or

(iii)    the Licensed Software comply with the laws (including intellectual property laws) of any country outside Australia.

(c)  Without limiting clause 8.3(b), the Company makes no representation and disclaims all liability in respect of the availability or performance of any third party products identified in the Minimum Technical Requirements (if any).

8.4  Customer’s warranties

The Customer warrants that:

(a)  it has full power and authority to enter into and perform its obligations under this Agreement;

(b)  this Agreement has been duly executed and delivered on behalf of the Customer and constitutes a legal, valid, binding obligation, enforceable against the Customer in accordance with its terms;

(c)  to its knowledge, neither the Customer Data nor the use of the Customer Data in conjunction with the Licensed Software infringes, violates or misappropriates any Intellectual Property Rights of any third party; and

(d)  it will hold throughout the Term (including any Term of an Order) public liability insurance from a reputable insurer in a minimum amount of $10 million and that it can provide a certificate of currency at any time during the Term (including any Term of an Order) when requested by the Company to do so.

9.  Liability

9.1  Exclusion of Liability

To the maximum extent permitted by law, the Company will not be liable for any liability caused or contributed to or by, arising from or connected with:

(a)  the Customer’s (or any of its Representatives’) acts or omissions; or

(b) a Patron’s interaction with the Customer (or any of its Representatives), including but not limited to in connection with the provision of the Licensed Software to, and their use by, the Customer (or its Representatives).

9.2  Exclusion of Consequential Loss

Neither party will be liable to the other party under or in respect of this Agreement (including under an indemnity) for any Consequential Loss, whether in contract, in tort (including negligence), under statute or otherwise.

9.3  Maximum liability

Despite any other provision of this Agreement and to the extent permitted by law, the Company’s maximum liability in connection with any Order, whether in contract, tort (including negligence), under statute or otherwise, is limited in aggregate to the amount paid by the Customer to the Company under the relevant Order in the 12 months prior to the cause of action arising.

10.  Confidentiality

10.1  Treatment of Confidential Information

Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party undertakes to keep the Confidential Information of the other party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.

10.2 Use of Confidential Information

A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under this Agreement.

10.3  Disclosure of Confidential Information

A Recipient may not disclose Confidential Information of the Discloser to any person except:

(a)  Representatives of the Recipient who require it for the purposes of the Recipient performing its obligations or exercising its rights under this Agreement or as part of any internal review processes and then only on a need to know basis;(b)    with the prior written consent of the Discloser;(c)    if the Recipient is required to do so by law or a stock exchange; or

(d)  if the Recipient is required to do so in connection with legal proceedings relating to this Agreement.

10.4  Disclosure by Recipient

A Recipient disclosing information under clause 10.3(a) or 10.3(b) must ensure that persons receiving Confidential Information from it are aware it is the other party’s Confidential Information and do not disclose the information except in the circumstances permitted in clause 10.3.

10.5  Return of Confidential Information

Subject to clause 10.6, on the Discloser’s request, the Recipient must, immediately deliver to the Discloser all documents or other materials containing or referring to the Discloser’s Confidential Information which are:

(a)    in the Recipient’s possession, power or control; or

(b)    in the possession, power or control of persons who have received Confidential Information from the Recipient under clause 10.3(a) or 10.3(b).

10.6  Exceptions

The obligation in clause 10.5 does not apply to Confidential Information of the Discloser that the Recipient requires in order to perform its obligations under this Agreement or is otherwise entitled to retain.

11.  Privacy

11.1  When handling personal and/or sensitive information as defined in the Privacy Act 1988 (Cth) (Privacy Act), each of the parties will at all times comply with the Privacy Laws in relation to such personal and/or sensitive information.

11.2  In performing its obligations under this Agreement, the Company will comply with its Privacy Policy in force from time to time. The Company’s Privacy Policy as at the date of this Agreement is at https://cherryhub.com.au/privacy-policy. The Company’s privacy terms are subject to change from time to time but will not materially reduce the level of privacy protection for Customer Data during the period for which any Subscription Fees have been paid.

11.3  The Customer warrants that the disclosure of any personal information and/or sensitive information by the Customer to the Company for the purposes of this Agreement, and the collection of such information by the Company, will not contravene the Australian Privacy Principles (Schedule 1 to the Privacy Act). The Customer agrees to provide any information and to obtain any consents relevant to its use of the Licensed Software, including those in relation to the collection, use, disclosure and storage of personal information of any individual whose personal information may be included in Customer Data.

11.4  The Customer agrees that the Company may utilise the Customer Data to create anonymised aggregated data reports which may be made public or provided to third parties. This right will survive the termination or expiration of this Agreement.

11.5  The Company will take all reasonable steps to protect personal information and sensitive information in its possession against misuse or loss and will segment Customer Data from other data held by the Company.

11.6  The Company must:

(a)  immediately notify the Customer if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Customer Data under its control by virtue of this Agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;

(b)  comply with any directive from the Customer as to which party will discharge any mandatory reporting obligation arising from the incident;

(c)  conduct or assist the Customer in conducting a reasonable and expeditious assessment of the breach or suspected breach and

(d)  ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.

12.  GST

(a)  Unless otherwise expressly stated in this Agreement, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

(b)  If a party makes a taxable supply under or in connection with this Agreement, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.

(c)  The supplier must, as a precondition to the payment of GST under clause 12(b), give the other party a tax invoice.

(d)  If an adjustment event arises in connection with a supply made under this Agreement, the supplier must give the other party an adjustment note.

(e)  If this Agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable.

13.  Termination

13.1  Right of termination

(a)  Either party may terminate an Order (or a portion of an Order) immediately by giving written notice to the other party if:

(i)  the other party has committed a material breach of an Order or a portion of an Order and the breach is incapable of remedy; or

(ii)  the other party has committed a material breach of an Order or a portion of an Order that is capable of remedy and does not rectify that breach within 10 Business Days of being given a written notice of the breach.

(b)  Termination of a portion or all of an Order under clause 13.1(a) does not affect other Orders or the Agreement as a whole.

(c)  Either party may terminate this Agreement immediately by giving written notice to the other party if:

(i)  the other party has committed a material breach of any of clauses 5.1, 7.1, 8, 10 or 11 of this Agreement and the breach is incapable of remedy;

(ii)  the other party has committed a material breach of any of clauses 5.1, 7.1, 8, 10 or 11 of this Agreement that is capable of remedy and does not rectify that breach within 10 Business Days of being given a written notice of the breach; or

(iii)  subject to clauses 415D, 434J and 451E of the Corporations Act, the other party becomes Insolvent.

(d)  The Company may terminate this Agreement immediately by giving written notice to the Customer if the Customer acts in a way in relation to the services provided by the Company that, in the Company’s opinion and based on reasonable evidence, is misleading, deceptive, dishonest or fraudulent.

13.2  Obligations on expiry or termination

(a)  Upon any termination or expiry of this Agreement or an Order pursuant to this clause 13.2 (as the case may be), the Licence and any other rights granted to the Customer under this Agreement (including all Orders) or the relevant Order will automatically terminate and:

(i)  the Customer must:

(A)  immediately cease to use the Licensed Software, and Documentation;

(B)  at the Company’s election, return or destroy all copies of the Licensed Software, and Documentation; and

(C)  pay the Company all amounts due under this Agreement.

(ii)  the Company will, if requested in writing by the Customer, within thirty (30) days of the effective date of termination or expiry, provide the Customer with Extracted Data.

(b)  Upon termination or expiry of this Agreement or an Order, as applicable, the Term will end and, subject to clause 13.2, the Customer and Authorised User access will be removed within thirty (30) days of the effective date of termination or expiry.

13.3  Preservation of rights

(a)  Termination of this Agreement for any reason does not extinguish or otherwise affect any rights or remedies of either party which arose prior to the time of termination, or the provisions of this Agreement which by their nature survive termination.

(b)  Without limiting the above, clauses 5 (Restrictions on use of Licensed Software), 8 (Intellectual Property Rights), 9 (Liability and indemnity), 10 (Confidentiality), 13.2 (Obligations on expiry or termination), 13.3 (Preservation of rights) and 16 (General) survive termination of this Agreement.

14.  Force majeure

(a)  The Company will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is due to a Force Majeure Event. The Company will notify the Customer of the Force Majeure Event as soon as reasonably practicable and will take reasonable steps to mitigate the effects of the Force Majeure Event.

(b)  If a delay or failure is caused or anticipated due to Force Majeure, the Company’s obligations under this Agreement will be suspended. If a delay or failure by the Company to perform its obligations due to a Force Majeure Event exceeds 60 days, either party may terminate the Agreement on providing written notice to the other.

15.  Notices

15.1  Service of notices

A notice, demand, consent, approval or communication under this Agreement, including under an Order (Notice):

(a)  must be in writing or via electronic delivery method and in English directed to the recipient’s email address specified in the Key Details (as varied by any Notice);

(b)  must be hand delivered, left at or sent by prepaid post or email to the recipient’s address or email address specified in the Key Details (as varied by any Notice); and

(c)  may be given by an agent of the sender.

15.2  Effective on receipt

A Notice given in accordance with clause 15.1 takes effect when received (or at a later time specified in it), and is taken to be received:

(a)  if hand delivered or left at the recipient’s address, on delivery;

(b)  if sent by prepaid post, the third Business Day after the date of posting, or the seventh Business Day after the date of posting if posted to or from outside Australia; and

(c)  if sent by email, when received by the recipient’s email server (whether or not classified as spam) unless the sender receives an automated message that delivery of the email has failed, but if the delivery or transmission under paragraph (a) or (c) is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours after that delivery, receipt or transmission.

15.3  Process service

Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this Agreement may be served by any method contemplated by this clause in addition to any means authorised by law.

16.  General

16.1  Assignment

The Customer must not assign, transfer, novate, encumber or otherwise deal with all or part of its rights or obligations under this Agreement without the Company’s prior written consent (which will not be unreasonably withheld or delayed).

16.2  Governing law

This Agreement is governed by the law in force in New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that State.

16.3  Partial exercising of rights

If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later.

16.4  Approvals and consents

By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.

16.5  Remedies cumulative

The rights and remedies provided in this Agreement are in addition to other rights and remedies given by law independently of this Agreement.

16.6  Variation and waiver

A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.

16.7  Indemnities

The indemnities in this Agreement are continuing obligations, independent from the other obligations of a party under this Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.

16.8  Entire agreement

This Agreement (including all Orders made pursuant to this Agreement) constitutes the entire agreement between the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter, whether oral or written.

16.9  Severability

If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

16.10  No relationship

Nothing in this agreement will be taken to constitute the Company as an employee, agent, partner or joint venturer of the Customer nor is the Company authorised to represent itself as acting, or to incur any obligation, on behalf